Demand Registration. (a) If the Company shall receive a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of: (i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and (ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period. (b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration. (c) The Company will pay all Registration Expenses in connection with any Demand Registration. (d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected. (e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size: (A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and (B) second, any securities proposed to be registered by the Company. (f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company. (g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. (h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Sources: Stockholders Agreement (Cable Systems Holding LLC), Investors Agreement (Ipc Information Systems Inc), Investors Agreement (Cable Systems Holding LLC)
Demand Registration. (a) If In addition to the rights provided in Section 2.1, the Majority Holders shall have the right to request in writing that the Company register all or part of such Holders’ Registrable Securities that are not then registered by an effective Registration Statement (a “Request”) (which Request shall specify the amount of Registrable Securities intended to be disposed of by such Holders and the intended method of disposition thereof) by filing a Registration Statement with the SEC pursuant to Rule 415 under the Securities Act on Form S-3 under the Securities Act (or in the event that the Company is ineligible to use such form, such other form as the Company is eligible to use under the Securities Act provided that such other form shall be converted into a Form S-3 promptly after Form S-3 becomes available to the Company) covering resales by the Holders as selling shareholders (not underwriters) of all or such portion of the Registrable Securities (a “Demand Registration”); provided, however, that (A) if the Company is not eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall receive be obligated to register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the then-outstanding Registrable Securities that are not registered under an effective Registration Statement, and (B) if the Company is eligible to register the Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to register the Registrable Securities upon such election; provided, that (i) there shall not be more than one such request during each of the Company’s fiscal quarterly periods and (ii) the Registrable Securities to be registered must include at least 1,000,000 Common Shares, or, in the aggregate, have an anticipated offering price, net of underwriting discounts and commissions, of more than $5,000,000, calculated in accordance with Rule 457(c) under the Securities Act on the business day preceding such Request.
(b) As promptly as practicable, but no later than 10 days after receipt of a Request, the Company shall give written notice of such requested registration to all Holders of Registrable Securities and Pari Passu Holders of Pari Passu Securities. Subject to Section 2.2(c), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders and (ii) the Registrable Securities and Pari Passu Securities intended to be disposed of by any other Holder or Pari Passu Holder which shall have made a written request by (which request shall specify the CSH Shareholders (any such requesting Person, a "Selling Shareholder"amount of Registrable Securities to be registered and the intended method of disposition thereof) that to the Company effect for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as expeditiously as possible following a Request, use its best efforts to cause to be filed with the SEC a Demand Registration Statement providing for the registration under the Securities Act of all or a portion of such Selling Shareholder's the Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders Securities and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Pari Passu Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such ShareholdersHolders and Pari Passu Holders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (of such Registrable Securities so to be registered in accordance with the intended methods of disposition thereof as aforesaid) of the Registrable Securities specified in such Request or further requests if so to be registered; provided that, subject to Section 5.01(d) hereof, the requested. The Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed use its best efforts to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered Statement declared effective by the Company.
(f) Upon written notice SEC as soon as practicable thereafter and to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months keep such Demand Registration Statement continuously effective for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice Section 4.1(b). The registration rights granted pursuant to the Company believes, in its reasonable judgment, would not provisions of this Section 2.2 shall be in addition to the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders registration rights granted pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersSection 2.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Sources: Registration Rights Agreement, Services and Investment Agreement (Exco Resources Inc), Registration Rights Agreement (Exco Resources Inc)
Demand Registration. (a) If At any time and from time to time on or after the Company shall receive a written request by the CSH Shareholders (any such requesting Persondate of this Agreement, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇, on behalf of the ▇▇▇▇▇▇ Shareholders, may request in writing (“Request”) that New Mylan register under the Securities Act all or part of the Registrable Securities that are Beneficially Owned by the ▇▇▇▇▇▇ Shareholders or their Affiliates (a) on a Registration Statement on Form S-3 or other available form (a “Demand Registration”) or (b) on a Shelf Registration Statement covering any Registrable Securities (or otherwise designating an existing Shelf Registration Statement with the SEC to cover the Registrable Securities) (a “Shelf Registration”). Any such Request may involve (i) a registered offering by the ▇▇▇▇▇▇ Shareholders of ▇▇▇▇▇▇ securities that entitle the holders thereof to receive all or a portion of the Registrable Securities Beneficially Owned by the ▇▇▇▇▇▇ Shareholders (or the cash value thereof) or (ii) a Hedging Arrangement in which the counterparty to one or more ▇▇▇▇▇▇ Shareholders uses the Shelf Registration Statement to effect short sales of Registrable Securities; provided that the consent of New Mylan shall be required in connection with any Request pursuant to clause (ii) above, such consent not to be unreasonably withheld, delayed or conditioned. ▇▇▇▇▇▇ shall be entitled to make no more than seven (7) Requests, and each such Request shall be to register an amount of Registrable Securities having an aggregate value of at least $200,000,000. Any requested registrations by ▇▇▇▇▇▇ prior to the date of this Agreement pursuant to Section 7.24(b) of the Business Transfer Agreement shall be deemed to be Demand Registrations or Shelf Registrations, as applicable, under this Agreement, including being taken into account in determining the foregoing permitted number of Requests, and each of the ▇▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, New Mylan shall have all rights and thereupon will use its best efforts obligations under this Agreement with respect to effect, such registrations as expeditiously as possible, the registration if such registrations had been requested under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company this Agreement. New Mylan shall not be obligated to effect a Demand Registration unless during the aggregate proceeds expected sixty (60) calendar day period following the effective date of a Registration Statement pursuant to be received from the sale of the Common Stock requested to be included in such any other Demand Registration, . Each Request pursuant to this Section 6.1 shall be in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders writing and shall specify the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number intended method of shares distribution of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Mylan B.V.), Shareholder Agreement (Mylan Inc.)
Demand Registration. (a) If Subject to the provisions of Section 5.2(d) and Section 5.2(e), if at any time after the earlier of four years after the Initial Closing (as defined in the Series E Stock Purchase Agreement) or 180 days after the date the Company first consummates a Public Offering on Form S-1 or Form SB-2, or any successor forms, the Company shall receive a written request by therefor from the CSH Shareholders record holder or holders of an aggregate of more than 33% of the Registrable Securities (any such requesting Personthe “Initiating Holders”), a "Selling Shareholder") that the Company effect the shall prepare and file a registration statement under the Securities Act covering such number of all or a portion Registrable Securities as are the subject of such Selling Shareholder's request, provided that such Registrable SecuritiesSecurities have an anticipated net aggregate offering price in excess of five million dollars ($5,000,000), and specifying shall use its best efforts to cause such registration statement to become effective. Upon the intended method receipt of disposition thereofa registration request meeting the requirements of this Section 5.2(a), then the Company shall promptly give written notice to all other record holders of Registrable Securities that such requested registration is to be effected. The Company shall include in such registration statement such additional Registrable Securities as such other record holders request within thirty (a "Demand Registration"30) days after the date of the Company’s written notice to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
them. If (i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities holders of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) majority of the Registrable Securities so for which registration has been requested pursuant to be registered; provided thatthis Section 5.2(a) and the holders of a majority of the shares of Registrable Securities held by the Initiating Holders determine for any reason not to proceed with the registration at any time before the related registration statement has been declared effective by the Commission, (ii) such registration statement, if theretofore filed with the Commission, is withdrawn and (iii) the holders of the Registrable Securities subject to such registration statement agree to bear their own Registration Expenses incurred in connection therewith and to reimburse the Company for the Registration Expenses incurred by it in such connection or if such registration statement, if theretofore filed with the Commission, is withdrawn at the initiative of the Company, then the holders of the Registrable Securities shall not be deemed to have exercised one of their two demand registration rights pursuant to this Section 5.01(d) hereof5.2(a); provided, however, that the holders of Registrable Securities requesting registration shall not be required to reimburse the Company for the Registration Expenses incurred by it in connection with a registration withdrawn at the request of such holders, and the Company shall not be obligated deemed to effect more than five Demand Registrations for have prepared, filed or caused to be effective the CSH Shareholders; and provided further that registration within the meaning of Section 5.2(c), if the holders requesting withdrawal of the registration do so in good faith because of material adverse information regarding the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodwhich they became aware after requesting registration.
(b) Promptly after At the expiration request of the 10-day period referred holders of a majority of the Registrable Securities to in Section 5.01(a)(ii) hereofbe registered, the Company will notify method of disposition of all Registrable Securities included in a registration under Section 5.2(a) shall be an underwritten offering. The managing underwriter of any such offering shall be selected by the Holders holders of a majority of the Registrable Securities for which registration has been requested and shall be reasonably acceptable to the Company. If in the good faith judgment of the managing underwriter of the Public Offering, the inclusion of all of the Registrable Securities the registration of which has been requested would interfere with their successful marketing, the number of Registrable Securities to be included in the Demand Registration of offering shall be reduced, pro rata, among the other Holders and requesting holders thereof in proportion to the number of Registrable Securities requested included in their respective requests for registration. Neither the Company nor any holder of securities (other than Registrable Securities) of the Company shall have the right to include any securities in a registration statement to be filed as part of a demand registration pursuant to this Section 5.2(a) or Section 5.4 unless (i) such securities are of the same class as the Registrable Securities to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of in the registration statement relating (or another class of securities to such registration, revoke such request, without liability to any of the other Holders, be sold by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by its own account), (ii) the holders of a majority of the Registrable Securities to be registered consent to such inclusion in writing, (iii) if such registration is an underwritten offering, the Company and such other holders agree in connection with writing to sell their securities on the same terms and conditions as apply to the Registrable Securities being sold pursuant to the request for registration and (iv) the inclusion of such registrationsecurities will not, in which case such request shall not be considered a Demand Registrationthe judgment of any managing underwriter of the Offering, interfere with the successful marketing of the Registrable Securities.
(c) The Company will pay all Registration Expenses in connection with any Demand Registrationshall be obligated to prepare, file and cause to be effective only two registration statements pursuant to Section 5.2(a).
(d) A Notwithstanding the foregoing, the Company may delay initiating the preparation and filing of any registration statement requested pursuant to this Section 5.01 5.2(a) for a period not to exceed one hundred twenty (120) days if (i) in the good faith judgment of the Company’s Board of Directors effecting the registration would substantially interfere with any material transaction being considered at the time of receipt of the request from the Initiating Holders or (ii) a request for registration is received during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred eighty (180) days following the effective date of, a Company-initiated registration as to which holders of Registrable Securities may include Registrable Securities pursuant to Section 5.3 below, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective and provided further that such right under subsection (i) to delay a request shall be exercised by the Company not more than once in any 12-month period.
(e) Notwithstanding anything to the contrary contained herein, and without limitation as to the rights of the Company to include in a demand registration securities for sale for its own account as provided in Section 5.2(a), at any time within thirty (30) days after receiving a demand for registration, the Company may elect to effect an underwritten primary registration in lieu of the requested registration. If the Company so elects, the Company shall give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration and shall afford such holders the rights contained in Section 5.3 with respect to “piggyback” registrations. In such event, the demand for registration shall be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) withdrawn without reducing the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"demand registrations remaining available under Section 5.2(c), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Salient Surgical Technologies, Inc.), Investors’ Rights Agreement (Salient Surgical Technologies, Inc.), Investors’ Rights Agreement (Salient Surgical Technologies, Inc.)
Demand Registration. (a) If Following receipt of a Demand Notice, the Company shall receive a written request by (subject to any rights set forth in the CSH Shareholders Existing Stockholders’ Agreement):
(any such requesting Person, a "Selling Shareholder"i) that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested request for registration to all Holders of Registrable Securities within ten (10) days after receipt of a "Demand Registration"Notice;
(ii) cause to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effectbe filed, as expeditiously soon as possiblepracticable, but in any event within, for the registration under filing of a Shelf Registration Statement, thirty (30) days of the Securities Act of:
(i) date of delivery of the Demand Notice, a Registration Statement covering such Registrable Securities which that the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all Requesting Holders and other Holders of Registrable Securities of the same type as that who make a request to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all within fifteen (15) days of the mailing of the Company’s notice referred to in Section 1.2(b)(i) hereof, that their Registrable Securities also be registered, providing for the registration under the Securities Act of such Registrable Securities to the extent necessary to permit the disposition (of such Registrable Securities in accordance with the intended methods thereof method of distribution specified in such Demand Notice;
(iii) use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC as aforesaidsoon as practicable thereafter, but in no event later than thirty (30) days or, if a Registration Statement is reviewed by the staff of the Registrable Securities so SEC, the Company shall use its commercially reasonable efforts to be registeredhave such Registration Statement declared effected not later than sixty (60) days following the date of initial filing thereof with the SEC; provided that, subject and
(iv) if the Company shall have previously effected a Demand Registration pursuant to this Section 5.01(d) hereof1.2, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than any registration pursuant to Section 1.2 until a period of one Demand Registration within any four-month period.
hundred eighty (b180) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to days shall have elapsed from the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form previous registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Sources: Registration Rights Agreement (AEON Biopharma, Inc.), Registration Rights Agreement (AEON Biopharma, Inc.), Registration Rights Agreement (AEON Biopharma, Inc.)
Demand Registration. In addition to the registration obligations of the Company set forth in Section 2.2 herein, the following provisions shall apply:
(a) If Subject to Section 2.3(i), upon the Company shall receive a written request by of the CSH Shareholders (any such Majority Holders, requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion part of such Selling Shareholder's Designated Holders’ Registrable Securities, Securities and specifying the intended method of disposition thereofthereof (the “Demand Notice”), then the Company shall will promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholdersall Designated Holders, and thereupon the Company will use its reasonable best efforts to effect, file with the SEC as expeditiously soon as possible, reasonably practicable following the registration under Demand Notice (but in no event later than the Securities Act ofdate that is 90 days after the Demand Notice) a Registration Statement. The Company shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC within 90 days after the initial filing of the Registration Statement. The Company shall include in such Registration Statement:
(i) the Registrable Securities which the Company has been so requested to register be registered by such Designated Holders for disposition in accordance with the Selling Shareholders, then held by the Selling Shareholders; andintended method of disposition stated in such request;
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one holders of which shall be have made a Business Day) written request to the Company for registration thereof within 30 days after the receipt by such Holders giving of such written notice given by the Company, Company (which request shall specify the intended method of disposition of such Registrable Securities); and
(iii) all shares of Common Stock which the Company or Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company may elect to register in connection with the offering of Registrable Securities pursuant to this Section 2.3; all to the extent necessary requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities and the additional shares of Common Stock, if any, so to be registered; provided provided, that, subject the provisions of this Section 2.3 shall not require the Company to Section 5.01(deffect more than two registrations of Registrable Securities.
(b) hereofNotwithstanding anything to the contrary contained in this Agreement, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated required to effect a Demand Registration unless the aggregate proceeds expected registration pursuant to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration this Section 2.3 within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to 180 days following the effective date of the a registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred filed by the Company in connection accordance with Sections 2.2, 2.3 or 2.4 for the account of another Designated Holder of Registrable Securities if the Designated Holders were afforded the opportunity to include the Registrable Securities in such registration, in which case such request shall not be considered a Demand Registration.
(c) The registrations under this Section 2.3 shall be on an appropriate Registration Statement that permits the disposition of such Registrable Securities in accordance with the intended methods of distribution specified by the Majority Holders in their request for registration. The Company will pay agrees to include in any such Registration Statement all Registration Expenses in connection with any Demand Registrationinformation which Designated Holders of Registrable Securities being registered shall reasonably request to effect the registration.
(d) A registration requested pursuant to this Section 5.01 2.3 shall not be deemed to have been effected unless the registration statement relating thereto (i) unless a Registration Statement with respect thereto has become effective; provided, that a Registration Statement which does not become effective under after the Company has filed a Registration Statement with respect thereto solely by reason of the refusal to proceed of the Majority Holders (other than a refusal to proceed based upon the advice of counsel relating to a matter with respect to the Company) or because of a breach of this Agreement by any Designated Holder shall be deemed to have been effected by the Company at the request of the Majority Holders unless the Designated Holders electing to have Registrable Securities Act registered pursuant to such Registration Statement shall have elected to pay all fees and expenses otherwise payable by the Company in connection with such registration pursuant to Section 2.8, (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is withdrawn by the Company (other than at the request of the Majority Holders) or interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason prior to the expiration of a 180 day period following such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders thatStatement’s effectiveness, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (iiiii) if the inclusion of some or all of the shares of Registrable Securities owned by the Holders, conditions to closing specified in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended purchase agreement or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be underwriting agreement entered into in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on are not satisfied, other than due solely to some act or omission by the Designated Holders electing to have Registrable Securities registered pursuant to such other formRegistration Statement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Tontine Capital Partners L P)
Demand Registration. (a) If the Company shall receive at any time after the Restriction Termination Date a written request by from two (2) or more Shareholders that are either Bank Shareholders or PE Shareholders, or both (in either case, the CSH Shareholders (any such requesting Person, a "Selling Shareholder"“Initial Requesting Shareholders”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Initial Requesting Shareholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice (a “Demand Notice”) of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) to the ▇▇▇▇▇▇▇▇▇▇▇ other Shareholders, which notice shall be given not later than ten (10) Business Days following receipt by the ▇▇▇▇▇ Company of the Demand Notice. Such other Shareholders and may, upon notice received by the ▇▇▇▇▇▇▇▇ ShareholdersCompany no later than five Business Days after the date of the notice of a Demand Registration, and thereupon will use its best efforts to effect, as expeditiously as possible, request that the Company also effect the registration under the Securities Act of:
(i) the of all or any portion of such other Shareholders’ Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all such other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such requesting Shareholders, together with the Selling Initial Requesting Shareholders, shall be referred to herein as the "Holders") has requested “Requesting Shareholders”). Thereafter, subject to the restrictions set forth in Section 2.04 and Section 3.01(f), the Company shall use commercially reasonable efforts to register by written request received by effect the Company within 10 days (one registration under the Securities Act of all Registrable Securities for which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all Requesting Shareholders have requested registration under this Section 3.01 to the extent necessary to permit the disposition of the Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered); provided that, subject to Section 5.01(d) hereof, that the Company shall not be obligated permitted to effect more the registration under the Securities Act of any securities other than five Demand Registrations Registrable Securities (including for the CSH Shareholdersbenefit of any other Persons not party to this Agreement) as part of any Demand Registration; and provided further that the Company shall not be obligated to effect a Demand Registration (i) unless the aggregate gross proceeds (before the deduction of any discounts or commissions) expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,000100,000,000 (the “Proceeds Threshold”), provided the Proceeds Threshold shall only apply through the fourth anniversary of the IPO Closing Date, and (ii) until after the Restriction Termination Date.
(b) If any Registrable Securities for which the Requesting Shareholders have requested registration under Section 3.01(a) are excluded from such Demand Registration in accordance with the restrictions set forth in Section 3.01(f), then such Requesting Shareholders may either (i) request that the Company grant a written waiver to permit such Requesting Shareholders to Transfer such excluded Registrable Securities by any means available, subject to compliance with the Securities Act and any other applicable securities or “blue sky” laws or (ii) request that the Company effect a second Demand Registration under the Securities Act to permit the disposition of such excluded Registrable Securities in a Public Offering. Thereafter, subject to the restrictions set forth in Section 2.04 and, in the case of clause (ii) of the preceding sentence, Section 3.01(f), the Company shall either (A) in its sole discretion, grant the waiver request of the Requesting Shareholders, or (B) use commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities for which the Requesting Shareholders have requested registration under Section 3.01(b)(ii) to the extent necessary to permit the disposition of the Registrable Securities so to be registered. If any Registrable Securities for which the Requesting Shareholders have requested registration under Section 3.01(b)(ii) are excluded from such second Demand Registration in accordance with the restrictions set forth in Section 3.01(f), then such Requesting Shareholders may, subject to the restrictions set forth in Section 2.04, Transfer such excluded Registrable Securities by any means available, subject to compliance with the Securities Act and any other applicable securities or “blue sky” laws. In no event will shall the Company be required to effect (A) more than one Demand Registration within any foureach successive 12-month periodperiod beginning on the Restriction Termination Date or any anniversary thereof except as provided in Section 3.01(b)(ii), (B) a Demand Registration within a period of 90 days after the effective date of any other registration statement relating to any Demand Registration or (C) any Demand Registration if, at the time of such request, four or more Demand Registrations (excluding (x) any Demand Registrations pursuant to Section 3.01(b)(ii) or 3.02(a)(ii)(B)(2), and (y) any Demand Registrations effected (in the Company’s sole discretion) other than the one Demand Registration required pursuant to this Section 3.01(b) within each successive 12-month period beginning on the Restriction Termination Date or any anniversary thereof) have previously been effected. Notwithstanding the foregoing limit of four Demand Registrations, if, subsequent to the fourth anniversary of the IPO Closing Date, (A) any PE Shareholder owns Common Shares equal to 100% of the number of such PE Shareholder’s Initial Ownership Common Shares and (B) the Company’s board of directors includes a member nominated by such PE Shareholder, then such PE Shareholder shall be entitled to one additional Demand Registration otherwise in accordance with the terms of Section 3.01 (provided that the Demand Notice required by Section 3.01(a) need only be sent by the Company to any other PE Shareholder that satisfies the same demand requirements as the requesting PE Shareholder), which shall not be taken into account for purposes of determining whether the limit of four Demand Registrations have been effected. In addition, if, as of the fourth anniversary of the IPO Closing Date, any Shareholder owns more than 5% of the Company’s issued and outstanding Common Shares, then such Shareholder shall be entitled to one additional Demand Registration otherwise in accordance with the terms of Section 3.01 (provided that the Demand Notice required by Section 3.01(a) need only be sent by the Company to any other Shareholder that satisfies the same demand requirements as the requesting Shareholder), which shall not be taken into account for purposes of determining whether the limit of four Demand Registrations have been effected.
(bc) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registrationa Demand Registration request pursuant to Section 3.01(a) or Section 3.01(b)(ii), revoke such request, without liability to any of a Shareholder may withdraw from the other Holders, related registration by providing a written notice to the Company. If sufficient Registrable Securities are so withdrawn such that the number of Registrable Securities to be included in such Demand Registration do not meet the applicable threshold(s) required for such Demand Registration pursuant to Section 3.01(a), the Company revoking may cease all efforts to effect such requestDemand Registration upon such withdrawal and, in which case upon the Company ceasing all efforts to effect registration, such Demand Registration shall be deemed revoked. Notwithstanding clause (e) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company, (ii) at the time of such withdrawal, the Shareholders shall have learned of a material adverse change in the condition, business, or prospects of the Company from the condition, business or unless prospects of the participating Company at the time of the related registration request and have promptly withdrawn the request after learning of such information, or (iii) the Requesting Shareholders reimburse the Company for all costs Registration Expenses (other than the expenses set forth under clause (v) of the definition thereof) incurred by prior to the Company receipt of such revocation, pro rata among such Requesting Shareholders on the basis of the number of Registrable Securities of each such Requesting Shareholder that were to be included in connection with the revoked Demand Registration. Notwithstanding the foregoing, if a requested registration does not meet the Proceeds Threshold, such registration, in which case such request requested registration shall not be considered deemed a Demand RegistrationRegistration or a withdrawn registration and shall not be taken into account for purposes of determining the number of Demand Registrations that have been effected.
(cd) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration that is effected or, in the case of any Demand Registration that is not effected, where (i) the failure of such Demand Registration to be effected arose out of the fault of the Company or (ii) the Requesting Shareholders do not elect to pay Registration Expenses in accordance with clause (iii) of the last sentence of Section 3.01(c). For the avoidance of doubt, the Requesting Shareholders shall be liable for and pay all Registration Expenses (other than the expenses set forth under clause (v) of the definition thereof) in any other circumstance in connection with any Demand Registration, and, in all circumstances in connection with any Demand Registration, shall be liable for and pay all fees and out-of-pocket expenses of the Requesting Shareholders (or the agents who manage their accounts), including, but not limited to, fees and disbursements of counsel for the Requesting Shareholders and any underwriting fees, discounts and commissions attributable to the sale of Registrable Securities.
(de) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 30 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to Requesting Shareholders included in such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have actually been effectedsold thereunder).
(ef) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Requesting Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder all Requesting Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Shareholders on the basis of the relative number of Registrable Securities so requested to be included in held by each such registrationShareholder); and
(Bii) second, any securities proposed to be registered by the CompanyCompany (including for the benefit of any other Persons not party to this Agreement, with such priorities among them as the Company shall determine in its sole discretion).
(fg) Upon written notice to each Selling Shareholderthe Requesting Shareholders, the Company may postpone effecting a registration pursuant to this Section 5.01 3.01 on one occasion two occasions during any period of six twelve consecutive months for a reasonable time period specified in the notice but not exceeding 90 120 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing determines that effecting the registration would could materially and adversely affect an offering of securities of such the Company the preparation of which had then been commenced or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Markit Ltd.), Registration Rights Agreement (Markit Ltd.)
Demand Registration. (a) If If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall receive a written request be requested by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company Investor to effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable SecuritiesShares, and specifying then, upon the intended method of disposition thereofwritten request, then delivered to the Company (which request shall promptly give written notice specify the number of Registrable Shares proposed to be included in such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersregistration), the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ ShareholdersCompany shall, and thereupon will subject to Section 2(c) below, promptly use its best efforts to effect, as expeditiously as possible, the effect such registration under the Securities Act of:
(i) of the Registrable Securities Shares which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; andregister.
(iib) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders"Anything contained in Section 2(a) has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereofcontrary notwithstanding, the Company shall not be obligated to effect more than five Demand Registrations for pursuant to Section 2(a) any registration under the CSH Shareholders; and provided further that Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to effect a Demand Registration unless use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the aggregate proceeds expected Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be received from or were sold has been filed and not withdrawn or has been declared effective within the sale prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after the date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the Common Stock requested time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such Demand Registrationregistration would interfere with the successful marketing (including pricing) of all such securities, in then the reasonable opinion number of CSH exercised in good faithRegistrable Shares, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders Primary Shares and Other Shares proposed to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to such registration shall be included thereinin the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. The Selling Shareholders requesting a A requested registration under this Section 5.01(a) may, at any time 2 may be rescinded prior to such registration being declared effective by the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, Commission by providing a written notice to the Company revoking from the Investor; PROVIDED, HOWEVER, that such request, in which case such request, so revoked, rescinded registration shall be considered not count as a Demand Registration unless such revocation arose out registration statement initiated pursuant to this Section 2 for purposes of the fault of clause (i) above if the Company or unless the participating Shareholders reimburse the Company shall have been reimbursed for all costs out-of-pocket expenses incurred by the Company in connection with such registration, in which case such rescinded registration and provided further that no request shall not to register Registrable Securities may be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested made pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i2(a) has become effective under the Securities Act and (ii) all for a period of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, from the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities date of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Companyrecession.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Sources: Registration Rights Agreement (Nortek Inc), Registration Rights Agreement (Nortek Inc), Registration Rights Agreement (Ply Gem Industries Inc)
Demand Registration. (a) If At any time following one hundred eighty (180) days following the Company shall receive consummation of the Initial Public Offering (or such earlier date as may be agreed by the managing underwriter in the Initial Public Offering), any Requesting Holder may give a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that to the Company to effect the registration under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of all or a any portion of such Selling Shareholder's Requesting Holder’s Registrable Securities, which written request shall specify the number of Registrable Securities to be registered and specifying the intended method of disposition thereof. At any time the Company is eligible for use of an Automatic Shelf Registration Statement, then such registration shall occur on such form. Upon the receipt of such written request, the Company shall promptly give written notice (via facsimile or electronic transmission) to the other Stockholders of such requested registration (each such registration shall be referred to in this Exhibit B as a "“Demand Registration"”) at least ten (10) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersanticipated filing date of the Registration Statement relating to such Demand Registration. Thereafter, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will Company shall use its best commercially reasonable efforts to effect, as expeditiously soon as possiblepracticable, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Holder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; andregistration under this Section 2.1;
(ii) all other Registrable Securities of the same type class or series as that those requested to which the request be registered by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Requesting Holder that the other Stockholders pursuant to Section 2.3 (all such Shareholdersother Stockholders, together with the Selling ShareholdersRequesting Holder, and any Stockholders participating in a Piggyback Registration pursuant to Section 2.3, the "“Registering Holders"”) has requested the Company to register by written request received by the Company within 10 days ten (one 10) Business Days after such other Stockholders receive the Company’s notice of which shall the Demand Registration; and
(iii) any Company Securities to be a Business Day) after the receipt by such Holders of such written notice given offered or sold by the Company, ; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided provided, that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect (x) more than five three (3) Demand Registrations (as defined below) for MacKay (together with any Person to whom any registration rights under this Exhibit B are assigned by MacKay pursuant to Section 2.13), (y) two (2) Demand Registrations for Alliance (together with any Person to whom any registration rights under this Exhibit B are assigned by Alliance pursuant to Section 2.13) and (z) one (1) Demand Registration for D.E. Shaw (together with any Person to whom any registration rights under this Exhibit B are assigned by D.E. Shaw pursuant to Section 2.13), in each case, other than Demand Registrations to be effected pursuant to a Registration Statement on Form S-3 (or any successor or similar form, including Form S-3) under the CSH Shareholders; and provided further that Securities Act (“Form S-3”) for which an unlimited number of Demand Registrations shall be permitted or (y) any such Demand Registration (1) within the Specified Period (or such shorter period as the Company shall not be obligated to effect a Demand Registration unless may determine in its sole discretion) after the aggregate proceeds expected to be received from the sale effective date of any other registration statement of the Common Stock requested to be included Company (other than a registration statement filed in such Demand Registration, connection with an employee benefit plan or business combination transaction or a registration statement on Form S-4 or Form S-8 or any similar or successor form thereto) or (2) in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodaccordance with Section 2.1(f).
(b) Promptly after the expiration of the ten (10-day ) Business Day period referred to in Section 5.01(a)(ii) hereof2.1(a)(ii), the Company will notify all Registering Holders of the Holders to be included in the Demand Registration identities of the other Registering Holders and the number of Registrable Securities requested to be included thereinin the Demand Registration by each of them. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement Registration Statement relating to such registrationDemand Registration, the Requesting Holder may upon notice to the Company, revoke such requestrequest in whole or in part with respect to the number of Registrable Securities requested to be included in such Registration Statement, without liability to any of the other Registering Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement Registration Statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained continuously effective for a period of at least (x) one hundred eighty (180) days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Holders included in such registration have actually been soldsold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided provided, that such Registration Statement shall not be considered a Demand Registration if, within 180 days after it has become such Registration Statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration Registration Statement is interfered with by any stop order, injunction order or other order or requirement Order of the SEC or other governmental agency or court Governmental Authority and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 662/3% of the Registrable Securities of the Requesting Holder sought to be included in such registration will be deemed not to have been effectedare included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the lead managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Holder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which Registrable Securities that can be sold without having an a material and adverse effect on such offering, including the price at which such shares Registrable Securities can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration Requesting Holder and all Registrable Securities requested to be included in such registration by any other Holder Registering Holders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, to give first priority to the inclusion of the Registrable Securities of the Requesting Holder and, thereafter, pro rata among such the remaining Registering Holders on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each such Registering Holder); and;
(Bii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(f) Upon written notice Notwithstanding anything to each Selling Shareholderthe contrary contained in this Exhibit B, but subject to the limitations set forth in this Section 2.1(f), the Company may postpone effecting shall be entitled to suspend its obligation to file (but not the preparation of) any Registration Statement in connection with any Demand Registration or Shelf Registration (including any Shelf Public Offering), file any amendment to such a registration Registration Statement, file or furnish any supplement or amendment to a prospectus included in such a Registration Statement, make any other filing with the SEC, cause such a Registration Statement or other filing with the SEC to become or remain effective or take any similar action (collectively, “Registration Actions”) upon (i) the issuance by the SEC of a stop order suspending the effectiveness of any such Registration Statement or the initiation of proceedings with respect to such a Registration Statement under Section 8(d) or 8(e) of the Securities Act, (ii) the Board’s determination, in its good faith judgment, that any such Registration Action should not be taken because it would reasonably be expected to materially interfere with or require the public disclosure of any material corporate development or plan, including any material financing, securities offering, acquisition, disposition, corporate reorganization or merger or other transaction involving the Company or any of its Subsidiaries or (iii) the Company possessing material non-public information the disclosure of which the Board determines, in its good faith judgment, would reasonably be expected to not be in the best interests of the Company. Upon the occurrence of any of the conditions described in clause (i), (ii) or (iii) above in connection with undertaking a Registration Action, the Company shall give prompt notice of such suspension (and whether such action is being taken pursuant to clause (i), (ii) or (iii) above) (a “Suspension Notice”) to the Requesting Holders. Upon the termination of such condition, the Company shall give prompt notice thereof to the Requesting Holders and shall promptly proceed with all Registration Actions that were suspended pursuant to this paragraph. The Company may only suspend Registration Actions pursuant to clause (ii) or (iii) of this Section 5.01 2.1(f) on one (1) occasion during any period of six twelve (12) consecutive months for a reasonable time specified in the notice Suspension Notice, but not exceeding 90 ninety (90) days (which period may not be extended or renewed) (each such occasion, a “Suspension Period”), if . Each Suspension Period shall be deemed to begin on the date the relevant Suspension Notice is given to the Requesting Holders and shall be deemed to end on the earlier to occur of (1x) an investment banking firm of recognized national standing shall advise the date on which the Company gives the Requesting Holders a notice that the Suspension Period has terminated and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2y) the Company is date on which the number of days during which a Suspension Period has been in possession effect exceeds the ninety (90) day period. If the filing of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one any Demand Registration by the CSH Shareholders or Shelf Registration is suspended pursuant to this Section 5.01 2.1(f), once the Suspension Period ends the Requesting Holder may request a new Demand Registration or a new Shelf Registration (neither such request shall be counted as an additional Demand Registration for purposes of Common Stocksubclause (x) in the proviso of Section 2.1(a)). Notwithstanding anything to the contrary in this Exhibit B, the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersCompany shall not be in breach of, upon request or have failed to comply with, any obligation under this Exhibit B where the Company acts or omits to take any action in order to comply with applicable Law, any interpretation of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority staff of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (SEC or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formOrder.
Appears in 3 contracts
Sources: Stockholders Agreement (Northwestern Mutual Life Insurance Co), Stockholders Agreement (Mackay Shields LLC), Stockholders Agreement (D. E. Shaw Galvanic Portfolios, L.L.C.)
Demand Registration. (a) If At any time and from time to time on or after the Company shall receive a date that is not less than 180 days after the Effective Date, upon the written request by (a “Demand Notice”) of the CSH Shareholders (any such Required Investors requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion of the Registrable Securities of such Selling Shareholder's Registrable SecuritiesInvestors (“Requesting Investors”), and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least 10 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders Registration Statement relating to such Demand Registration to the other Investors and to the ▇▇▇▇▇▇▇▇ Shareholders, holders of Other Registrable Securities and thereupon will shall use its best commercially reasonable efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
of (i) the all Registrable Securities for which the Company has been so Requesting Investors have requested to register by the Selling Shareholdersregistration under this Section 2(a), then held by the Selling Shareholders; and
(ii) subject to the restrictions of Sections 2(e) and 3(d), all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder other Investors (all such Shareholders, together with the Selling ShareholdersInvestors, the "Holders"“Registering Investors”) has requested request the Company to register pursuant to Section 3(a) by written request received by the Company within 10 days (one of which shall be a 5 Business Day) Days after the receipt Company gives notice of the Demand Registration, and (iii) subject to the restrictions of Sections 2(e) and 3(d), all Other Registrable Securities that any holders of Other Registrable Securities (all such holders, the “Other Registering Holders”) request the Company to register pursuant to Section 3(a) by such Holders of such written notice given request received by the CompanyCompany within 5 Business Days after the Company gives notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods method of disposition thereof as aforesaid) of the Registrable Securities so to be so registered; , provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in Registration by the reasonable opinion of CSH exercised in good faith, Requesting Investors equals or exceeds $7,500,00015,000,000. Each such Demand Notice will specify the number of Registrable Securities proposed to be offered for sale in aggregate and by each Requesting Investor and will also specify the intended method of distribution thereof.
(b) If a Demand Registration involves an Underwritten Offering the Required Investors shall select the lead Underwriter and any additional Underwriters in connection with such offering.
(c) Notwithstanding the foregoing provisions of this Section 2, the Investors may not request a Demand Offering during a period commencing upon the filing (or earlier, but not more than 30 days prior to such filing upon notice by the Company to the Investors that it so intends to file) of a Registration Statement for Common Stock by the Company (for its own account or for any other security holder) and ending (i) 90 days after such Registration Statement is declared effective by the SEC (or automatically becomes effective), (ii) upon the withdrawal of such Registration Statement or (iii) 30 days after such notice if no such Registration Statement has been filed within such 30-day period, whichever occurs first; provided that the foregoing limitation shall not apply if the Investors were not given reasonable opportunity, in violation of Section 3, to include their Registrable Securities in the Demand Registration Statement. In no event will shall the Company be required to effect more than one Demand Registration hereunder within any foursix-month period.
(bd) Promptly after the expiration of the 10-day period referred The Requesting Investors are permitted to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered rescind a Demand Registration unless at any time. So long as the Investors theretofore participating in such revocation arose out of the fault of the Company or unless the participating Shareholders rescinded Demand Registration reimburse the Company for all costs expenses (including reasonable fees and disbursements of counsel) incurred by the Company in connection with such registrationrescinded Demand Registration, in which case such request shall a rescinded Demand Registration will not be considered count as a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any for purposes of determining when future Demand Registration.
(d) A registration Registrations can be requested by the Required Investors pursuant to this Section 5.01 2 and any Registration Statement related to such rescinded Demand Registration shall not affect when another Demand Registration may be deemed to have been effected unless requested by the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities Required Investors pursuant to such registration is interfered with by any stop order, injunction or other order or requirement the terms of the SEC or other governmental agency or court such registration will be deemed not to have been effectedthis Agreement.
(e) If a Demand Registration involves an Underwritten Public Offering and any of the managing underwriter shall advise lead Underwriters advises the Company and the Selling Shareholders that, in its view, (i) the total number or dollar amount of shares of Registrable Securities and Other Registrable Securities requested to be included in such the registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number or dollar amount of shares which securities that can be sold without having an adverse effect on such offering, including the price at which such shares securities can be sold (the "“Maximum Offering Size"”), the Company will include the securities in such the registration, in the priority listed belowfollowing order of priority, up to the Maximum Offering Size:
: (Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (Registering Investors allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Registering Investors on the basis of the relative number of Registrable Securities so requested to be included in such registration)registration by each Registering Investor; and
(Bii) second, all Other Registrable Securities requested to be included in such registration by any Other Registering Holder, pro rata among such Other Registering Holders on the basis of the relative number of Other Registrable Securities so requested to be included in such registration by each Other Registering Holder; and (iii) third, any securities proposed to be registered by the CompanyCompany or for the account of any other third party. All persons whose securities are included in the Demand Registration must sell their securities on the same terms and conditions as apply to the securities being sold by Requesting Investors.
(f) Upon written notice to each Selling Shareholderthe Requesting Investors, the Company may postpone effecting a registration pursuant to this Section 5.01 2 on one occasion up to two occasions during any period of six 12 consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed)in the aggregate, if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After the Company has effected one A Demand Offering and related Registration Statement will not count as a Demand Offering for purposes of determining when future Demand Offerings can be requested by the CSH Shareholders Required Investors pursuant to this Section 5.01 of Common Stock, 2 if (i) the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required Registration Statement relating to effect more than two such Demand Registrations Offering does not become effective within 90 calendar days after the date such Registration Statement is filed with the SEC (other than by reason of any Required Investor having refused to proceed or a misrepresentation or an omission by any Required Investor) or (ii) the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable conditions to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to closing specified in any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (underwriting agreement or any successor or similar short-form registration statement) shall be purchase agreement entered into in connection with an Underwritten Public Offering, and if such Demand Offering are not satisfied as a result of a default or breach thereunder by the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formCompany.
Appears in 3 contracts
Sources: Registration Rights Agreement (Kadmon Holdings, Inc.), Registration Rights Agreement (Kadmon Holdings, LLC), Exchange Agreement (Kadmon Holdings, LLC)
Demand Registration. (a) If the Company At any time, one or more Stockholders (each a “Requesting Stockholder”) shall receive be entitled to make a written request by of the CSH Shareholders Corporation (any such requesting Person, a "Selling Shareholder"“Demand”) that the Company effect the for registration under the Securities Act of an amount of Registrable Securities that, in the aggregate taking into account all of the Requesting Stockholders, equals or a portion is greater than the Registrable Amount (based on the number of Registrable Securities outstanding on the date such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration Demand is made) (a "“Demand Registration"”) and thereupon the Corporation will, subject to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersterms of this Agreement, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best commercially reasonable efforts to effect, as expeditiously as possible, effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company Corporation has been so requested to register by the Selling Shareholders, then held by Requesting Stockholders for disposition in accordance with the Selling Shareholders; andintended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Corporation has been requested to register pursuant to Section 5.1(b); and
(iii) all equity securities of the same type as that to Corporation which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company Corporation may elect to register by written request received by the Company within 10 days (one in connection with any offering of which shall be a Business Day) after the receipt by such Holders of such written notice given by the CompanyRegistrable Securities pursuant to this Section 5.1, but subject to Section 5.1(h); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidthereof) of the Registrable Securities so and the additional Common Shares, if any, to be so registered; provided that.
(b) Each Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, subject (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) business days after receipt of a Demand, the Corporation shall give written notice of such Demand to all other Stockholders. Subject to Section 5.01(d) hereof5.1(h), the Company Corporation shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Corporation has received a written request for inclusion therein within ten (10) days after the Corporation’s notice required by this Section 5.1(b) has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 5.1(b).
(c) Each of the Stockholders shall be entitled to an unlimited number of Demand Registrations.
(d) Demand Registrations shall be on (i) Form S-1 or any similar long-form registration, (ii) Form S-3 or any similar short form registration, if such short form registration is then available to the Corporation, or (iii) Form S-3ASR if the Corporation is, at the time a Demand is made, a Well-Known Seasoned Issuer, in each case, reasonably acceptable to the Requesting Stockholders holding a majority of the Registrable Securities included in the applicable Demand Registration.
(e) The Corporation shall not be obligated to (i) maintain the effectiveness of a registration statement under the Securities Act, filed pursuant to a Demand Registration, for a period longer than 90 days or (ii) effect any Demand Registration (A) within six (6) months of the effective date of a registration statement with respect to a “firm commitment” Underwritten Offering in which all Piggyback Sellers were given “piggyback” rights pursuant to Section 5.2 (subject to Section 5.1(f)) and at least 50% of the number of Registrable Securities requested by such Piggyback Sellers to be included in such Demand Registration were included, (B) within four (4) months of the effective date of a registration statement with respect to any other Demand Registration or (C) if, in the Corporation’s reasonable judgment, it is not feasible for the Corporation to proceed with the Demand Registration because of the unavailability of audited or other required financial statements, provided that the Corporation shall use its commercially reasonable efforts to obtain such financial statements as promptly as practicable. In addition, the Corporation shall be entitled to postpone (upon written notice to all Stockholders) the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice in any period of twelve (12) consecutive months and in no event for more than an aggregate of one-hundred twenty (120) days in any three-hundred sixty-five Demand Registrations for (365) consecutive day period) if the CSH Shareholders; and provided further Board determines in its reasonable judgment that the Company filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Corporation has a bona fide business purpose for preserving as confidential.
(f) The Corporation shall not be obligated to effect include any securities other than Registrable Securities in a Demand Registration, except for any Common Shares held by any Other Professional Holder, any securities held by any stockholders who acquire Common Shares after the date hereof and whom the Corporation gives pari passu rights, or with the written consent of Stockholders participating in such Demand Registration unless that hold a majority of the aggregate proceeds expected Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, the lead bookrunning underwriters (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Corporation and reasonably acceptable to Stockholders holding a majority of the Registrable Securities included in such Demand Registration, and whose fees and expenses shall be borne solely by the Corporation) advise the Corporation, in writing, that, in their reasonable opinion, the inclusion of all of the securities, including securities of the Corporation that are not Registrable Securities, sought to be received from registered in connection with such Demand Registration would adversely affect the sale marketability of the Registrable Securities sought to be sold pursuant thereto, then the Corporation shall include in such registration statement only such securities as the Corporation is reasonably advised by such underwriters or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Common Stock Shares requested to be included in such Demand RegistrationRegistration by any Stockholders and any Other Professional Holders, which, in the reasonable opinion of CSH exercised the underwriter or investment bank can be sold without adversely affecting the marketability of the offering, pro rata among such Persons based upon the number of Common Shares deemed to be owned by such Persons and their respective Group; (ii) second, securities the Corporation proposes to sell; and (iii) third, all other equity securities of the Corporation duly requested to be included in good faithsuch registration statement, equals pro rata on the basis of the amount of such other securities requested to be included or exceeds $7,500,000. In no event will such other method determined by the Company be required to effect more than one Demand Registration within any four-month periodCorporation.
(bg) Promptly after Any time that a Demand Registration involves an Underwritten Offering, the expiration Corporation shall (i) select the investment banker or investment bankers and managers that will serve as lead and co-managing underwriters with respect to the offering of such Registrable Securities, and (ii) enter into an underwriting agreement that is reasonably acceptable to the Stockholders holding a majority of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders Registrable Securities requested to be included in the Demand Registration and the Corporation, with such agreement containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the other Holders and the number Corporation contained herein) by an issuer of Registrable Securities requested common stock in underwriting agreements with respect to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date offerings of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary common stock for the offering not to exceed the Maximum Offering Sizeaccount of, pro rata among or on behalf of, such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersissuers.
(h) If In connection with any registration requested pursuant to Underwritten Offering under this Section 5.01 which is proposed 5.1, the Corporation shall not be required to include the Registrable Securities of a Stockholder in the Underwritten Offering unless such Stockholder accepts the terms of the underwriting as agreed upon between the Corporation and the underwriters selected by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing thatCorporation, in its opinion, accordance with the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formterms hereof.
Appears in 3 contracts
Sources: Stockholders Agreement (Apollo Global Management, Inc.), Stockholders Agreement (Harris Joshua), Stockholders Agreement (LDB 2014 LLC)
Demand Registration. At any time after the earlier of one hundred and eighty (a180) If days following the Company shall receive completion of a Public Sale or five (5) years after the Effective Time, upon the written request by Stockholders owning or holding, alone or with their Affiliates, more than fifty percent (50%) of the CSH Shareholders issued and outstanding Preferred Stock (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock), which such Stockholders shall, in all events, include Mitsui and Kirin, respectively, so long as Mitsui or Kirin, as applicable, owns at least fifty percent (50%) of the number of shares of Preferred Stock (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock) owned by them, respectively, as of the Effective Time (subject to proportionate adjustment in the case of any stock split, reverse stock split, recapitalization, reclassification stock dividend or other distribution with respect to such shares), requesting Person, a "Selling Shareholder") that the Company effect the registration a public offering under the Securities Act of all or a portion part of the Registrable Securities held by such Selling Shareholder's Registrable Securities, Stockholders and specifying the intended method or methods of disposition thereofof such Registrable Securities, then the Company shall will promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders all Stockholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, effect the registration under the Securities Act Act, as expeditiously as is reasonable, of:
(i) the Registrable Securities which that the Company has been so requested to register by such Stockholders, for disposition in accordance with the Selling Shareholders, then held by the Selling Shareholdersintended method of disposition stated in such request; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company has been requested to register by other Stockholders by written request received by delivered to the Company within 10 30 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given delivered by the Company, ; all to the extent necessary required to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject . Anything herein to Section 5.01(d) hereofthe contrary notwithstanding, the Company shall not be obligated to effect consummate more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
two (b2) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested registrations pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto 2(a); provided, that in each case at least eighty percent (i80%) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by are registered and sold to the parties requesting such Demand Registration and all Registrable Securities public. In connection with any underwritten offering with respect to which Stockholders shall have requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed2(a), if the Company shall have the right to select the lead managing underwriter (1) being an investment banking underwriting firm of recognized national standing) with respect to such offering, such underwriter to be reasonably acceptable to the Stockholders requesting the registration. Should the Stockholders requesting the registration so elect, they may select an underwriting firm of national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by reasonably acceptable to the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar shortact as co-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success lead manager of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Sources: Registration Rights Agreement (Thorne Healthtech, Inc.), Registration Rights Agreement (Thorne Healthtech, Inc.), Registration Rights Agreement (Thorne Healthtech, Inc.)
Demand Registration. (ai) If During the Demand Registration Period, the Holders of at least 200,000 Registrable Securities (adjusted for any stock split, stock dividend, reverse stock split or similar change in the Common Stock after the date of this Agreement) shall have the option and right, exercisable by delivering a written notice to the Company (a “Holder Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement on Form S-1 (or any equivalent or successor form under the Securities Act) (or to the extent the Company is eligible to use Form S-3 or any equivalent or successor form or forms, on Form S-3 or any comparable or successor form) registering the offering and sale of at least 200,000 Registrable Securities (adjusted for any stock split, stock dividend, reverse stock split or similar change in the Common Stock after the date of this Agreement) on the terms and conditions specified in the Holder Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Holder Demand Registration”). The Holder Demand Notice must set forth the number and type of Registrable Securities that the Initiating Holders anticipate will be included in such Holder Demand Registration and the intended methods of disposition thereof.
(ii) Within five (5) Business Days of the receipt of the Demand Notice, the Company shall receive a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration Demand Notice to all Holders (a "Demand Registration"other than the Initiating Holders) and, within thirty (30) days thereof, shall, subject to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholderslimitations of this Section 2(a), the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be file a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (Registration Statement in accordance with the intended methods thereof as aforesaid) terms and conditions of the Demand Notice, which Registration Statement shall cover, in addition to the Registrable Securities set forth in the Demand Notice, all of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company that such Holders shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders writing request to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to (provided such registration, revoke such request, without liability to any of the other Holders, by providing a written notice request is given to the Company revoking within ten (10) days of receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii) and includes such requestinformation regarding the requesting Holder as is required to be disclosed in connection with such Demand Registration pursuant to Regulation S-K promulgated under the Securities Act). The Company shall use commercially reasonable efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) one hundred eighty (180) days (or one (1) year if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold or cease to be Registrable Securities (the “Demand Effectiveness Period”); provided, in which case however, that such request, so revoked, period shall be considered extended for a Demand period of time equal to the period the Selling Stockholders refrain from selling any securities included in such Registration unless such revocation arose out Statement at the request of the fault an underwriter of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registrationpursuant to this Agreement.
(ciii) The Subject to the other limitations contained in this Agreement, the Company will pay all is not obligated hereunder to effect: (A) more than two (2) Demand Registrations during the Demand Registration Expenses Period, (B) more than one (1) Demand Registration in connection with a calendar year, (C) a Demand Registration within one hundred eighty (180)) days of the closing of any Underwritten Offering, or (D) a subsequent Demand Registration.
(d) A registration requested Registration pursuant to this Section 5.01 a Demand Notice if a Registration Statement covering all of the Registrable Securities covered by such Demand Notice shall not be deemed to already have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of such Registrable Securities on the terms and conditions specified in such Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in such Demand Notice.
(iiiv) Subject to Section 2(a)(i), a Selling Stockholder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon delivery of a notice by a Selling Stockholder to the effect that the Selling Stockholder is withdrawing Registrable Securities such that the remaining Registrable Securities are below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement.
(v) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (x) as shall be selected by the Company and (y) as shall permit the disposition of the Registrable Securities registered thereunder have been soldin accordance with the intended method or methods of disposition specified in the Initiating Holders’ request for such registration; provided provided, however, that ifif the Company becomes, within 180 days after it has become effectiveand is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to such registration an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act if available to the Company. If at any time a Registration Statement is interfered with by any stop order, injunction effective and a Selling Stockholder provides written notice to the Company that it intends to effect an offering of all or other order or requirement part of the SEC Registrable Securities included on such Registration Statement, the Company will amend or other governmental agency or court supplement such registration will Registration Statement as may be deemed not necessary in order to have been effectedenable such offering to take place.
(evi) If a Without limiting Section 3, in connection with any Demand Registration involves an Underwritten Public Offering pursuant to and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"accordance with this Section 2(a), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
shall (A) firstpromptly prepare and file or cause to be prepared and filed (1) such additional forms, all amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as the Selling Stockholders shall reasonably request; provided, however, that no such registration or qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or would be required to qualify to do business or register as a broker or dealer, and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities requested subject to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
Trading Market and (B) second, do any securities proposed to and all other acts and things that may be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended reasonably necessary or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced appropriate or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations reasonably requested by the CSH Shareholders shall apply, mutatis mutandis, Selling Stockholders to any such Demand Registration by enable the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant Selling Stockholders to this Section 5.01 which is proposed by the Company to be effected by the filing of consummate a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success public sale of such proposed offering, then such registration shall be effected on such other formRegistrable Securities in accordance with the intended timing and method or methods of distribution thereof.
Appears in 3 contracts
Sources: Registration Rights Agreement (Scientific Industries Inc), Registration Rights Agreement (Scientific Industries Inc), Registration Rights Agreement (Scientific Industries Inc)
Demand Registration. (a) If the Company shall receive a written request by from the CSH Shareholders DLJMB Stockholders (any such requesting Personperson, a "Selling Shareholder"the “Requesting Stockholder”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least fifteen (15) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, other Stockholders and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Stockholders have requested to register by the Selling Shareholdersregistration under this Section 1.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholders that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Stockholders with rights to request registration under Section 1.02 (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholders, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days ten (one of which shall be a 10) Business Day) Days after the receipt by such Holders of such written notice given by Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d1.01(d) hereof, the Company shall not be obligated to effect (x) more than five six Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration, Registration are at least $20 million in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one any Demand Registration within any four-month periodother than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10-day ) Business Day period referred to in Section 5.01(a)(ii1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other HoldersRegistering Stockholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any each Demand Registration, regardless of whether such Demand Registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholders that, in its view, (i) the number of shares of Registrable Company Securities requested that the Registering Stockholders and the Company propose to be included include in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Members on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each); and
(Bii) second, any securities all Registrable Securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 3 contracts
Sources: Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings (New) LLC)
Demand Registration. (a) If At any time following the earlier of (x) the Company shall receive consummating an Initial Public Offering of the Class A Common Stock or (y) the first anniversary of the Emergence Effective Date, any Requesting Stockholder may give a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that to the Company to effect the registration under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, which written request shall specify the number of Registrable Securities to be registered and specifying the intended method of disposition thereof. At any time the Company is eligible for use of an Automatic Shelf Registration Statement, then such registration shall occur on such form. Upon the receipt of such written request, the Company shall promptly give written notice (via facsimile or electronic transmission) to the other Stockholder Groups of such requested registration (each such registration shall be referred to herein as a "“Demand Registration"”) at least ten (10) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersanticipated filing date of the Registration Statement relating to such Demand Registration. Thereafter, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will Company shall use its best commercially reasonable efforts to effect, as expeditiously soon as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Stockholder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; andregistration under this Section 2.01;
(ii) all other Registrable Securities of the same type class or series as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholder that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder other Stockholder Group (all such ShareholdersStockholder Groups, together with the Selling ShareholdersRequesting Stockholder, and any Stockholder Groups participating in a Piggyback Registration pursuant to Section 2.03, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days ten (one 10) Business Days after such Stockholder Groups receive the Company’s notice of which shall the Demand Registration; and
(iii) any Company Securities to be a Business Day) after the receipt by such Holders of such written notice given offered or sold by the Company, ; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof2.01(d), the Company shall not be obligated to effect (x) more than five (5) Demand Registrations requested by the Oaktree Stockholder, three (3) Demand Registrations requested by the JPMorgan Stockholder and three (3) Demand Registrations requested by the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Stockholder, in each case, other than Demand Registrations to be effected pursuant to a Registration Statement on Form S-3 (or any successor or similar form) under the Securities Act (“Form S-3”) for which an unlimited number of Demand Registrations shall be permitted, (y) any such Demand Registration (i) within the CSH Shareholders; and provided further that Specified Period (or such shorter period as the Company shall not be obligated to effect may determine in its sole discretion) after the effective date of any other registration statement of the Company (other than a registration statement filed in connection with an employee benefit plan or business combination transaction or a registration statement on Form S¬4 or Form S-8 or any similar or successor form thereto) or (ii) in accordance with Section 2.01(f) or (z) any Demand Registration unless if the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in Registration is less than the reasonable opinion lesser of CSH exercised (i) $100,000,000 and (ii) 2.5% of the market capitalization determined in good faith, equals or exceeds $7,500,000. In no event will faith as of the date the Company be required to effect more than one receives a written request for Demand Registration within any four-month periodRegistration.
(b) Promptly after the expiration of the ten (10-day ) Business Day period referred to in Section 5.01(a)(ii) hereof2.01(a)(ii), the Company will notify all Registering Stockholders of the Holders identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included in the Demand Registration by each of the other Holders and the number of Registrable Securities requested to be included thereinthem. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement Registration Statement relating to such registrationDemand Registration, the Requesting Stockholder may upon notice to the Company, revoke such requestrequest in whole or in part with respect to the number of shares of Registrable Securities requested to be included in such Registration Statement, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand RegistrationRegistering Stockholders.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective; provided, however, that if the Requesting Stockholder revokes its request in whole pursuant to Section 2.01(b), the Requesting Stockholder shall reimburse the Company for and/or pay directly all Registration Expenses incurred relating to such Demand Registration.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement Registration Statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained continuously effective for a period of at least (x) one hundred eighty (180) days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been soldsold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.05(a)(ii); provided that such Registration Statement shall not be considered a Demand Registration if, within 180 days after it has become such Registration Statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 66 2⁄3% of the Registrable Securities of the Requesting Stockholder sought to be included in such registration will be deemed not to have been effectedare included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the lead managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an a material and adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration Requesting Stockholder and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, to give first priority to the inclusion of the Registrable Securities of the Requesting Stockholder and, thereafter, pro rata among such Holders the remaining Registering Stockholders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registrationregistration by each such Registering Stockholder); and;
(Bii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(f) Upon written notice Notwithstanding anything to each Selling Shareholderthe contrary contained in this Agreement, but subject to the limitation set forth in the next succeeding paragraph, the Company may postpone effecting shall be entitled to suspend its obligation to file (but not the preparation of) any Registration Statement in connection with a registration Demand Registration, any Shelf Registration (including any Shelf Public Offering), file any amendment to such a Registration Statement, file or furnish any supplement or amendment to a prospectus included in such a Registration Statement, make any other filing with the SEC, cause such a Registration Statement or other filing with the SEC to become or remain effective or take any similar action (collectively, “Registration Actions”) upon (i) the issuance by the SEC of a stop order suspending the effectiveness of any such Registration Statement or the initiation of proceedings with respect to such a Registration Statement under Section 8(d) or 8(e) of the Securities Act, (ii) the Board’s determination, in its good faith judgment, that any such Registration Action should not be taken because it would reasonably be expected to materially interfere with or require the public disclosure of any material corporate development or plan, including any material financing, securities offering, acquisition, disposition, corporate reorganization or merger or other transaction involving the Company or any of its subsidiaries or (iii) the Company possessing material non-public information the disclosure of which the Board determines, in its good faith judgment, would reasonably be expected to not be in the best interests of the Company. Upon the occurrence of any of the conditions described in (i), (ii) or (iii) above in connection with undertaking a Registration Action, the Company shall give prompt notice of such suspension (and whether such action is being taken pursuant to (i), (ii) or (iii) above) (a “Suspension Notice”) to the Stockholders. Upon the termination of such condition, the Company shall give prompt notice thereof to the Stockholders and shall promptly proceed with all Registration Actions that were suspended pursuant to this Section 5.01 paragraph. The Company may only suspend Registration Actions pursuant to the preceding paragraph on one (1) occasion during any period of six (6) consecutive months for a reasonable time specified in the notice Suspension Notice but not exceeding 90 ninety (90) days (which period may not be extended or renewed) (each such occasion, a “Suspension Period”), if . Each Suspension Period shall be deemed to begin on the date the relevant Suspension Notice is given to the Stockholders and shall be deemed to end on the earlier to occur of (1i) an investment banking firm of recognized national standing shall advise the date on which the Company gives the Stockholders a notice that the Suspension Period has terminated and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2ii) the Company is date on which the number of days during which a Suspension Period has been in possession effect exceeds the ninety (90) day period. If the filing of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one any Demand Registration by the CSH Shareholders or Shelf Registration is suspended pursuant to this Section 5.01 2.01(f), once the Suspension Period ends the Requesting Stockholder may request a new Demand Registration or a new Shelf Registration (neither such request shall be counted as an additional Demand Registration for purposes of Common Stocksubclause (x) in the proviso of Section 2.01(a)). Notwithstanding anything to the contrary in this Agreement, the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersCompany shall not be in breach of, upon request or have failed to comply with, any obligation under this Agreement where the Company acts or omits to take any action in order to comply with applicable law, any interpretation of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority staff of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (SEC or any successor order or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use decree of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formany court or governmental agency.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Tribune Media Co)
Demand Registration. (a) If at any time following the expiration of the period during which the managing underwriters for the IPO shall prohibit the Company from effecting any other public sale or distribution of Registrable Securities, the Company shall receive a written request by from either the CSH Shareholders Electrum Parties or the MERS Party (any such requesting Person, a "Selling Shareholder"that party shall be referred to herein as the “Requesting Stockholder”) that the Company effect effected the registration under the Securities Act of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least 2 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated pricing date of the ▇▇▇▇▇ Shareholders and offering relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, other Stockholders and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Stockholders have requested to register by the Selling Shareholders, then held by the Selling Shareholdersregistration under this Section 2.01; and
(ii) subject to the restrictions set forth in Sections 2.01(d) and 2.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholders that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Stockholders with rights to request registration under Section 2.01 (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholders, and any Stockholders participating in a Piggyback Registration pursuant to Section 2.02, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days (one of which shall be a 1 Business Day) Day after the receipt by such Holders of such written notice given by Stockholders receive the Company, ’s notice of the Demand Registration; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof2.01(c), the Company shall not be obligated to effect more than five three Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect within a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four12-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the The Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company liable for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected.
(dc) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been soldsold thereunder); provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(d) such that less than 66 2/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(ed) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder of a party with rights under Section 2.01 (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders entities on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each such Stockholder); and
(Bii) second, any securities proposed all Registrable Securities requested to be registered included in such registration by any other Registering Stockholder or Person, including the CompanyCompany (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Stockholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each such Stockholder).
(fe) Upon written notice to each Selling ShareholderRequesting Stockholder, the Company may postpone effecting a registration pursuant to this Section 5.01 2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(gf) After At any time following the Company has effected one Demand Registration by consummation of the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersIPO, upon the request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that Electrum Parties, the Company register Common Stock which are shall use its best efforts to file a “shelf” registration statement (the “Shelf Registration”) with respect to the Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested on an appropriate form pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 Rule 415 (or any successor similar provision that may be adopted by the SEC) under the Securities Act and to cause such Shelf Registration to become effective and to keep such Shelf Registration in effect until the Stockholders no longer hold any Registrable Securities. Any offer or similar short-form registration statement) sale of Registrable Securities pursuant to the Shelf Registration in any underwritten Public Offering shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance deemed to be a Demand Registration subject to the success provisions of such proposed offering, then such registration shall be effected on such other formSection 2.01(a).
Appears in 2 contracts
Sources: Registration Rights Agreement (Gatos Silver, Inc.), Registration Rights Agreement (Sunshine Silver Mining & Refining Corp)
Demand Registration. (a) If The Purchaser may at any time after the Company shall receive a written date one year from the date hereof request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") in writing that the Company effect the registration register under the Securities Act of 1933, as amended (the "Securities Act") all or a any portion of the Registrable Stock (as defined below) for sale in the manner specified in such Selling Shareholder's Registrable Securitiesnotice; and provided, and specifying that the intended method of disposition thereof, then aggregate purchase price to the Company shall promptly give written notice public of such public offering of the shares of Registrable Stock for which registration has been requested registration (a "Demand Registration") shall reasonably be anticipated to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersexceed $1 million; and provided, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
further that (i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect register Purchaser's Registrable Stock pursuant to this paragraph (a) on more than five Demand Registrations for the CSH Shareholders; one occasion, and provided further that (ii) the Company shall not be obligated to effect a Demand Registration unless shelf registration as such is defined in Rule 415 under the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodSecurities Act.
(b) Promptly after the expiration Following receipt of the 10-day period referred to any notice delivered in compliance with paragraph (a) of this Section 5.01(a)(ii) hereof1 (a "Demand"), the Company will notify all shall use its best efforts to register under the Holders Securities Act, for public sale in accordance with the method of disposition specified in such Demand, the number of shares of Registrable Stock specified in such Demand. Purchaser may request a specific managing underwriter or underwriters, which shall be of national standing, subject to the approval of the Company, which approval shall not unreasonably be included withheld or unreasonably delayed. The Company shall be deemed to have satisfied an obligation to register Registrable Stock pursuant to a Demand when a registration statement covering at least 90% of the shares of Registrable Stock specified in the Demand Registration for sale in accordance with the method of disposition specified in the other Holders Demand shall have become effective and the number period of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date distribution of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registrationcontemplated thereby has been completed (determined as hereinafter provided).
(c) The Company will pay all Registration Expenses shall be entitled to include in any registration statement filed in response to a Demand made in accordance with this Section 1, for sale in accordance with the method of disposition specified by the Purchaser in such Demand, shares of Common Stock to be sold by the Company for its own account or that of other security holders, except as and to the extent that, in the opinion of the managing underwriters, such inclusion would adversely affect the marketing of the Registrable Stock, or the price thereof or the number of shares to be included for which registration has been requested in connection with such Demand. Except for registration statements on From S-4, ▇-▇ ▇▇ any successor forms thereto, the Company will not file with the Securities and Exchange Commission (the "Commission") any other registration statement with respect to its Common Stock, whether for its own account or that of other security holders, from the date of receipt of a Demand Registrationpursuant to this Section 1 until 45 days following the completion of the period of distribution of the registration contemplated thereby (determined as hereinafter provided).
(d) A The Company may at its option elect that any requested registration requested pursuant to this Section 5.01 shall 1(a) be delayed for a period not be deemed to have been effected unless in excess of 90 days from the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all date of the Registrable Securities registered thereunder have been sold; provided that such Demand but only if, within 180 days after it has become effectiveat the time of such request, the offering of Registrable Securities pursuant Company is engaged in a transaction which is material to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number disclosure of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an would have a material adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (CPH 2 L L C), Registration Rights Agreement (Capital Pacific Holdings Inc)
Demand Registration. (a) If Following receipt of a Demand Notice, the Company shall receive a written request by the CSH Shareholders shall:
(any such requesting Person, a "Selling Shareholder"i) that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested request for registration to all Holders of Registrable Securities within fifteen (a "15) days after receipt of such Demand Registration"Notice;
(ii) cause to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effectbe filed, as expeditiously soon as possiblepracticable, the registration under the Securities Act of:
(i) the a Registration Statement covering such Registrable Securities which that the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all Requesting Holders and other Holders of Registrable Securities of the same type as that who make a request to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all within ten (10) days of the mailing of the Company’s notice referred to in Section 1.2(b)(i) hereof, that their Registrable Securities also be registered, providing for the registration under the Securities Act of such Registrable Securities to the extent necessary to permit the disposition (of such Registrable Securities in accordance with the intended methods thereof as aforesaid) method of distribution specified in such Demand Notice; provided, that, such Registrable Securities are not already covered by an existing and effective Registration Statement that may be utilized for the offering and sale of the Registrable Securities so requested to be registeredregistered in the manner so requested;
(iii) use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC as soon as practicable thereafter;
(iv) refrain from filing any other Registration Statements, other than pursuant to a Registration Statement on Form S-4 or Form S-8 (or similar or successor forms), with respect to any equity securities of the Company until such date which is at least ninety (90) days (or, in the case of an IPO, one hundred eighty (180) days) following effectiveness of the Registration Statement relating to such Demand Registration; provided that, subject and
(v) if the Company shall have previously effected a Demand Registration pursuant to Section 5.01(d) hereof1.2, the Company shall not be obligated required to effect any registration pursuant to Section 1.2 until a period of one hundred eighty (180) days shall have elapsed from the effective date of such previous registration statement.
(vi) if a Registration Statement filed pursuant to this Section 1.2 is a Shelf Registration Statement, then upon the demand of one or more than five Demand Registrations for the CSH Shareholders; and provided further that Holders, the Company shall not be obligated facilitate up to effect a Demand two (2) “takedowns” of Registrable Securities in the form of an underwritten offering utilizing the Shelf Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand RegistrationStatement, in the reasonable opinion manner and subject to the conditions described in Sections 1.2(b)(iv), 1.2(c), 1.2(e) and 1.2(f) of CSH exercised in good faiththis Agreement, equals or exceeds $7,500,000. In no event will provided, that, the Company will not be required to effect more than one Demand a “takedown” made pursuant to this Section 1.2(b)(vi) if the Company reasonably believes, based on the advice of an underwriter that is a reputable nationally recognized investment bank, that such an offering would not reasonably be expected to generate gross proceeds (before deducting underwriters’ commissions and fees and other expenses) of at least $100,000,000. Within fifteen (15) days after receiving a request for an underwritten offering constituting a “takedown” from a Shelf Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereofStatement, the Company will notify shall give written notice of such request to all other Holders, and include in such underwritten offering all such Registrable Securities with respect to which the Holders to Company has received written requests for inclusion therein within ten (10) days after the Company’s giving of such notice, provided, that, such Registrable Securities are covered by an existing and effective Shelf Registration Statement that may be included in utilized for the Demand Registration offering and sale of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registrationregistered.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Chicago Atlantic Real Estate Finance, Inc.), Registration Rights Agreement (AFC Gamma, Inc.)
Demand Registration. (a) If At any time following the Company exercise of the Warrant and prior to the Registration of all of the Warrant Shares, and subject to the other provisions of this Agreement, Orbiter shall receive have the right, exercisable by making a written request by (the CSH Shareholders (any such requesting Person, a "Selling ShareholderRegistration Request") to the Company, to demand that the Company effect the registration under the Securities Act Registration of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the any Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) provisions of the Act. Upon receipt of the Registration Request, the Company shall be obligated to register each of the Registrable Securities so beneficially owned by Orbiter in the manner set forth in Section 2(b) hereof. Any provision herein to the contrary notwithstanding, the right to demand Registration pursuant to this Section 2 shall be limited to one (1) Registration demand. A right to demand Registration hereunder shall be deemed to have been exercised and all of the Company's demand Registration obligations hereunder shall be deemed to be registered; provided that, subject fully satisfied when the registration statement filed on account of such exercise has been declared effective by the Commission.
(b) Following receipt of the Registration Request pursuant to Section 5.01(d2(a) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and file within ninety (ii90) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of thereafter a registration statement on the appropriate form S-3 under the Act for the shares of Common Stock that the Company has been requested to Register; (ii) if the applicable Offering is pursuant to an underwriting agreement, enter into an underwriting agreement in such form as said managing or sole underwriter shall require (which must only contain terms and conditions customary for offerings of equity securities of entities with market capitalizations that are approximately equal to the Company's then current market capitalization and may contain customary provisions requiring the Company and Orbiter to indemnify and provide contribution to the underwriter or underwriters of such Offering); and (iii) use its reasonable best efforts to have such registration statement declared effective as promptly as practicable and to remain effective for at least one hundred and twenty (120) days. Notwithstanding any successor other provision hereof, Orbiter acknowledges and agrees that there can be no guarantee or similar short-form warranty from or by the Company that any such registration statement) shall statement will ever be in connection with an Underwritten Public Offeringdeclared effective by the Commission, and if the managing underwriter shall advise that the Company makes no such guarantee or warranty in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formthis Agreement or otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (Genetic Vectors Inc), Registration Rights Agreement (Genetic Vectors Inc)
Demand Registration. (a) If To the Company extent one or more Covered Persons have delivered Elections of Exchange pursuant to the Exchange Agreement in respect of any Quarterly Exchange Date covering Partnership Units having an aggregate market value (based on the most recent closing price of the Company’s Class A Common Stock on the securities exchange on which such Class A Common Stock is listed at the time of the applicable Demand Notice (as defined below)) of at least $75 million, the Demand Committee shall receive have the right at any time prior to the applicable Cut-Off Date to provide a written request by to the CSH Shareholders Company (any such requesting Person, a "Selling Shareholder"“Demand Notice”) that the Company effect the registration under the Securities Act of, in the Company’s sole and absolute discretion, (x) the offer and sale by such Covered Persons of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then Securities that the Company shall promptly give written notice deliver to such Covered Persons, at or prior to the settlement of such requested registration offering, in exchange for the Partnership Units that are the subject of such Elections of Exchange at the applicable Exchange Rate or (y) the offer and sale by the Company of a number of shares of Class A Common Stock (“Primary Issuance Funding Securities”) equal to the product of the number of Partnership Units that are the subject of such Elections of Exchange multiplied by the Exchange Rate, the net proceeds of which issuance (determined after deduction of any underwriting discounts and commissions, but not of any other offering expenses, including Registration Expenses) the Company shall use to acquire from such Covered Persons the Partnership Units that are the subject of such Elections of Exchange (a "“Demand Registration") to ”), whereupon the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will Company shall use its best commercially reasonable efforts to effect, as expeditiously as possiblereasonably practicable, the subject to paragraphs (c) and (d) of this Section 2.2, such registration under the Securities Act of:
(i) of the Registrable Securities or Primary Issuance Funding Securities for which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") Demand Committee has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Companyregistration under this Section 2.2, all to the extent necessary to permit the disposition offer and sale (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so or Primary Issuance Funding Securities to be so registered; provided thatprovided, subject to Section 5.01(d) hereofhowever, that the Company shall will not be obligated to effect more than five any such requested registration within 180 days after the effective date of a previous Demand Registrations Registration. The public offering price for the CSH Shareholders; and provided further that any Public Offering of Primary Issuance Funding Securities shall be determined as mutually agreed upon between the Company and the lead managing underwriters of such a Public Offering. Each Demand Notice delivered pursuant to this section 2.2(a) shall not be obligated include the information set forth under Section 2.5(j) to effect a the extent applicable. The Company shall inform the Demand Registration unless the aggregate proceeds expected to be received from the sale Committee immediately upon request of the Common Stock requested to be included number of Partnership Units in such Demand Registration, in the reasonable opinion respect of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within which Covered Persons have delivered Elections of Exchange for any four-month periodQuarterly Exchange Date.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registrationa Demand Registration, the Demand Committee may revoke such request, without liability to any of the other Holders, Demand Notice by providing a written notice to the Company revoking such request, in which case such request, so revoked, Demand Notice. The Company shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company liable for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will and pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(ec) If a Demand Registration involves an Underwritten a Public Offering and the sole or managing underwriter shall underwriters advise the Company and the Selling Shareholders that, in its their view, (i) the number of shares of Registrable Securities, Primary Issuance Funding Securities requested and/or other securities that the Company and such Covered Persons intend to be included include in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which Registrable Securities, Primary Issuance Funding Securities and/or other securities that can be sold in such offering without having an adverse effect on such offeringadversely affecting the distribution of the securities being offered, including the price at which that will be paid in such shares can be sold offering or the marketability thereof (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed belowfollowing priority, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities or Primary Issuance Funding Securities requested to be registered in the Demand Registration by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registrationproportions as shall be determined by the Demand Committee); and;
(Bii) second, any securities other than Primary Issuance Funding Securities proposed to be registered by the CompanyCompany for its own account and any securities entitled to Other Registration Rights requested to be registered by the holders thereof, ratably among the Company and the holders of such Other Registration Rights, based (A) as between the Company and the holders of such Other Registration Rights, on the respective amounts of securities requested to be registered, and (B) as among the holders of such Other Registration Rights, on the respective amounts of securities subject to such Other Registration Rights held by each such holder.
(fd) Upon written notice to each Selling Shareholderthe Demand Committee, the Company may postpone effecting filing (but not the preparation of) a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months 2.2 for a reasonable time specified in the notice but not exceeding 60 days thereafter or 90 days (which period may not be extended or renewed)in any 365-day period, if (1i) an investment banking firm the Board or a committee of recognized national standing the Board shall advise determine in good faith that the Company and the Selling Shareholders in writing that filing of such registration statement or effecting the a registration would materially and adversely affect an offering of securities of such the Company the preparation of which had then been commenced or (2ii) the Company is in possession of material non-public information the disclosure of which which, during the period specified in such notice the Company believes, Board or a committee of the Board believes in its reasonable judgmentgood faith, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning or would have a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders material adverse effect on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed active proposal by the Company to be effected by the filing of a registration statement on form S-3 (or any successor of its subsidiaries to engage in any material acquisition, merger, consolidation, tender offer, other business combination, reorganization, securities offering or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of other material importance to the success of such proposed offering, then such registration shall be effected on such other formtransaction.
Appears in 2 contracts
Sources: Registration Rights Agreement (PJT Partners Inc.), Registration Rights Agreement (PJT Partners Inc.)
Demand Registration. (a) If Kriegsman may, upon written notice to the Company shall receive a written at any time followin▇ ▇▇▇ ▇▇▇e of this Warrant Agreement until the Expiration Date, make one request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under file with the Securities Act and Exchange Commission, within sixty (60) days of all or a portion the delivery of such Selling Shareholder's Registrable Securitiesnotice to the Company, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested a registration statement (a "Demand Registration") on a form satisfactory to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts Company to effect, as expeditiously as possible, the registration register under the Securities Act of:of 1933, as amended (the "Securities Act"), the Warrant Shares issued or issuable (whether or not yet vested) by way of exercise of the Warrant ("Registrable Securities"). Notwithstanding the foregoing, Registrable Securities shall not include any securities that may be sold by a person to the public pursuant to Rule 144(k) under the Securities Act during any ninety (90) day period.
(ib) If the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities Demand Registration is part of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together combined with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one an underwritten primary registration on behalf of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to and the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, managing underwriters advise the Company shall not be obligated to effect more than five Demand Registrations for that in their opinion the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale number of the Common Stock securities requested to be included in such Demand Registrationregistration exceeds the number which can be sold in an orderly manner in such offering within a price range reasonably acceptable to the Company, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, then the Company will notify all include in such registration (1) first, the Holders securities the Company proposes to sell, (2) second, the Registrable Securities requested to be included therein and any other securities requested to be included therein by other holders entitled to request inclusion of their securities in such registration, pro rata among the Demand Registration holders of such Registrable Securities and other securities on the other Holders and basis of the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at therein and any time prior other securities requested to the effective date be included therein by other holders entitled to request inclusion of the registration statement relating to their securities in such registration, revoke such requestand (3) third, without liability other securities requested to any of the other Holders, by providing a written notice to the Company revoking such request, be included in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all If the Demand Registration Expenses in connection is part of or combined with any Demand Registration.
(d) A an underwritten secondary registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all on behalf of holders of the Registrable Securities registered thereunder have been sold; provided that ifCompany's Common Stock, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall underwriters advise the Company and the Selling Shareholders that, that in its view, (i) their opinion the number of shares of Registrable Securities securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having in an adverse effect on orderly manner in such offeringoffering within a price range reasonably acceptable to the holders initially requesting such registration, including the price at which such shares can be sold (the "Maximum Offering Size"), then the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
registration (A1) first, all Registrable Securities the securities requested to be registered included therein by the parties holders requesting such Demand Registration registration, and all (2) the Registrable Securities and any other securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not holders entitled to exceed the Maximum Offering Sizerequest inclusion of their securities in such registration, pro rata among the holders of such Holders securities on the basis of the relative number of Registrable Securities so requested to be included therein and any other securities requested to be included therein by other holders entitled to request inclusion of their securities in such registration); and.
(Bd) second, any securities proposed If the number of shares of Registrable Securities actually registered pursuant to the Demand Registration is reduced pursuant to either of subsections (b) or (c) above from the number of shares originally requested to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during subsection (a) above, then Kriegsman shall be permitted, at any period of six consecutive months for a reasonable time specified in after the notice but not exceeding 90 days date which is ten (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇) ▇▇▇▇ Shareholders, upon request after the effective date of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed statement filed by the Company pursuant to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offeringthe Demand Registration, and if to make another Demand Registration in accordance with subsection (a) above for such number of shares of Registrable Securities as was originally requested in the managing underwriter shall advise prior Demand Registration but which were not actually registered; provided, however, that notwithstanding subsection (a) above, the Company in writing that, in its opinion, the use of another form of shall file such other registration statement is within twenty (20) days of material importance the delivery to the success Company of such proposed offering, then such registration shall be effected on the notice by Kriegsman requesting such other formDemand Registration.
Appears in 2 contracts
Sources: Warrant Agreement (Immtech International Inc), Warrant Agreement (Immtech International Inc)
Demand Registration. (a) If the Company shall receive a written request by the CSH Shareholders LLC or its Permitted Transferees or DLJIP (any such requesting Person, a "Selling ShareholderStockholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling ShareholderStockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") at least 30 days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, Other Stockholders and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling ShareholdersStockholders, then held by the Selling ShareholdersStockholders; and
(ii) subject to the restrictions set forth in Section 5.01(e), all other Registrable Securities of the same type as that to which the request by the Selling Shareholders Stockholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Other Stockholder entitled to request the Company to effect an Incidental Registration (as such term is defined in Section 5.02) pursuant to Section 5.02 (all such ShareholdersStockholders, together with the Selling ShareholdersStockholders, the "Holders") has requested the Company to register by written request received by the Company within 10 15 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect (A) more than five six Demand Registrations for the CSH ShareholdersLLC and its Permitted Transferees or (B) one Demand Registration for DLJIP (which Demand Registration right may not be exercised prior to the earlier of (1) five years from the Closing Date and (2) the date that is 180 days after an Initial Public Offering); and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH DLJ Merchant Banking II, Inc. exercised in good faith, equals or exceeds (Y) $7,500,00030,000,000 if such Demand Registration would constitute the Initial Public Offering, or (Z) $10,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 1015-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders Stockholders requesting a registration under this Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration, or unless such revocation arose out of the fault of the Company, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected (i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Holders included in such registration have actually been soldsold thereunder); provided that if, within 180 days if after it has become effective, the offering of Registrable Securities any registration statement requested pursuant to this Section becomes effective (x) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (y) less than 75% of the Registrable Securities included in such registration will statement has been sold thereunder, such registration statement shall not be deemed not considered a Demand Registration or (ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) or 5.01(f) such that less than 66 2/3% of the Registrable Securities of the Selling Stockholders sought to have been effectedbe included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders Stockholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares securities which can be sold without having an adverse effect on such offering, including the price at which such shares securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first: (1) in the case of a Demand by the LLC and its Permitted Transferees, all Registrable Securities requested to be registered by the parties requesting Selling Stockholder and by all of its Permitted Transferees and CRL, DLJIP, BB, Carlyle, and the TCW Entities (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Persons on the basis of the relative number of shares of Registrable Securities requested to be registered), or (2) in the case of a Demand Registration by DLJIP, all Securities requested to be registered by the Selling Stockholder and by all of its Permitted Transferees and BB, Carlyle, and the TCW Entities (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Persons on the basis of the relative number of shares of Registrable Securities requested to be registered);
(B) second: (1) in the case of a Demand by the LLC and its Permitted Transferees, all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration), or (2) in the case of a Demand by DLJIP, all Registrable Securities requested to be included in such registration by the LLC and its Permitted Transferees and by CRL (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of shares of Registrable Securities requested to be included in such registration);
(C) third: (1) in the case of a Demand by the LLC and its Permitted Transferees, any securities proposed to be registered by the Company, or (2) in the case of a Demand by DLJIP, all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of shares of Registrable Securities requested to be included in such registration); and
(BD) secondfourth: in the case of a Demand by DLJIP, any securities proposed to be registered by the Company.
(f) Upon written notice If the Company files a shelf registration statement with respect to each Selling Shareholderthe High Yield Warrants, the Company may postpone effecting a registration pursuant shall notify the holders of the Warrants at least 20 days prior to this Section 5.01 on one occasion during any period such filing. The holders of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days Warrants shall have the right (which period may shall not be extended or reneweddeemed to be a use of a Demand Registration right), if (1) an investment banking firm of recognized national standing shall advise by notice to the Company and Company, to include the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified Warrants in such notice shelf registration statement. Notwithstanding anything in this Agreement to the Company believescontrary, in its reasonable judgment, would this Agreement shall not be construed to confer on any Stockholder (other than holders of Warrants in the best interests of the Company.
(gtheir capacity as such, together with any Persons entitled to indemnification hereunder in connection therewith) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be rights in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of such shelf registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formstatement.
Appears in 2 contracts
Sources: Investors' Agreement (Charles River Laboratories Holdings Inc), Investors' Agreement (Charles River Laboratories Inc)
Demand Registration. (a) If the Company shall receive a written request by the CSH from a Shareholder or group of Shareholders (any such the requesting Person, a "Selling Shareholder(s) shall be referred to herein as the “Requesting Shareholder"”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling the Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least 10 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ registration statement relating to such Demand Registration to the other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Company Requesting Shareholder has been so requested to register by the Selling Shareholdersregistration under this Section 2.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 2.01(e) and 2.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholder that any Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling ShareholdersRequesting Shareholder, the "Holders"“Registering Shareholders”) has have requested the Company to register pursuant to Section 2.02, by written request received by the Company within 10 days (one of which shall be a seven Business Day) Days after the receipt by such Holders of such written notice given by Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided provided, however, that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,00010,000,000 or such lesser amount that constitutes all of the Requesting Shareholder’s Registrable Securities (provided that such lesser amount is at least $5,000,000). In no event will shall the Company be required to effect more than one Demand Registration hereunder within any fourthree-month period.
(b) Promptly after the expiration of the 10seven-day Business Day period referred to in Section 5.01(a)(ii) hereof2.01(a)(ii), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such . A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or unless (ii) the participating Shareholders reimburse Requesting Shareholder reimburses the Company for all costs incurred by the Company in connection with Registration Expenses of such registration, in which case such request shall not be considered a Demand Registrationrevoked request.
(c) The Company will shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been sold; sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 662/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Shareholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Shareholders on the basis of the relative number of Registrable Securities so requested to be included in held by each such registrationShareholder); and
(Bii) second, any securities proposed to be registered by the CompanyCompany (including for the benefit of any other Persons not party to this Agreement).
(f) Upon written notice to each Selling the Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 45 days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing reasonably determines that effecting the registration would materially and adversely affect an offering of securities of such the Company the preparation of which had then been commenced commenced, or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (RCS Capital Corp), Registration Rights Agreement (RCS Capital Corp)
Demand Registration. (i) At any time on or after the date of the first to occur of (a) If the second anniversary of the Closing, (b) a Company Change in Control, (c) a single party or affiliated group making a bona fide offer to acquire, acquiring or entering into an agreement to acquire 33% or more of the outstanding voting stock of the Company, or (d) Holder being compelled to sell its Shares pursuant to Section 5.5 of the Investment Agreement, if one or more Holders that own an aggregate market value of $15,000,000 or more at the time of the request of the Registrable Securities shall make a written request to the Company, the Company shall receive cause there to be filed with the Commission a written registration statement meeting the requirements of the Securities Act (a "DEMAND REGISTRATION"), and each Holder shall be entitled to have included therein (subject to SECTION 2.6) all or such number of such Holder's Registrable Securities as the Holders shall designate pursuant to SECTIONS 2.1(i) or (iii) hereof in writing; PROVIDED, HOWEVER, that no request may be made pursuant to this SECTION 2.1 if within 9 months prior to the date of such request a Demand Registration statement pursuant to this SECTION 2.1 shall have been declared effective by the CSH Shareholders Commission. Any request made pursuant to this SECTION 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this SECTION 2.1(i).
(ii) The Company shall be entitled to postpone for up to 90 days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this SECTION 2.1 if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such requesting Personregistration and the Transfer of Registrable Securities contemplated thereby would materially interfere with, a "Selling Shareholder") or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned Subsidiaries and the Company promptly gives the Holders notice of such determination; PROVIDED, HOWEVER, that the Company shall not have postponed pursuant to this SECTION 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this SECTION 2.1 during the 12 month period ended on the date of the relevant request pursuant to SECTION 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to SECTION 2.1(i) to effect the registration under the Securities Act of all or a portion of such Selling Shareholder's any Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested proposed registration (to all other Holders. Any such Holder may, within 20 days after receipt of such notice, request in writing that all of such Holder's Registrable Securities, or any portion thereof designated by such Holder, be included in the registration.
2.2. Following receipt of a "request for a Demand Registration") to Registration the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act ofCompany shall:
(i) File the Registrable registration statement with the Commission in accordance with SECTION 4 hereof as promptly as practicable, and shall use the Company's reasonable best efforts to have the registration declared effective under the Securities which Act as soon as reasonably practicable, in each instance giving due regard to the Company has been so requested need to register by the Selling Shareholdersprepare current financial statements, then held by the Selling Shareholders; andconduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) all other Registrable Securities of Use the same type Company's reasonable efforts to keep the relevant registration statement Continuously Effective for up to 90 days or until such earlier date as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to be registered; provided that, subject to Section 5.01(d) hereofthis SECTION 2 is suspended or postponed as permitted by SECTION 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.3. The Company shall not be obligated to effect more than five three Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale Registrations. For purposes of the Common Stock requested to be included in such Demand Registrationpreceding sentence, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the offering related offer, sale or distribution of Registrable Securities pursuant to such registration thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration will be deemed are not to have been effected.
(e) satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders thatshall have complied with its obligations under this Agreement, in its view, (i) the number of shares of Registrable Securities requested a right to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting demand a registration pursuant to this Section 5.01 on one occasion during any SECTION 2 shall be deemed to have been satisfied upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of six consecutive months for a reasonable time 90 days.
2.4. A registration pursuant to this SECTION 2 shall be on such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Selling Holders, and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the notice but not exceeding 90 days request pursuant to SECTION 2.1(i) or SECTION 2.2, respectively.
2.5. If any registration pursuant to SECTION 2 involves an underwritten offering (which period may not be extended whether on a "firm", "best efforts" or renewed"all reasonable efforts" basis or otherwise), if (1) or an investment banking firm of recognized national standing shall advise agented offering, the Company shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the Agent or Agents for such agented offering; PROVIDED, HOWEVER, that each Person so selected shall be reasonably acceptable to the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) Holders.
2.6. Whenever the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders shall effect a registration pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be SECTION 2 in connection with an Underwritten Public Offeringunderwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and if the managing underwriter shall advise the Company Underwriters' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the use inclusion of another form more than one class of registration statement Registrable Securities would adversely affect such offering, the Selling Holders holding at least a majority of the Registrable Securities (determined by the relative market value as of the date on which a timely demand is last received from Holder) proposed to be sold therein by them, shall decide which class of material importance Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters' Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the success of such proposed offeringSelling Holders, then such registration securities shall be effected included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on such a pro rata basis among all Selling Holders; first for the account of the Holder, and second by all other formSelling Holders.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Metro One Telecommunications Inc), Registration Rights Agreement (Metro One Telecommunications Inc)
Demand Registration. (a) If At any time after the six month anniversary of the Registration Date: (i) Shareholders owning a majority of the then outstanding Registrable Shares may on two occasions give the Company written notice (a “Demand Notice”) requiring the Company to file a Registration Statement covering the sale or distribution of, at such Shareholders’ option, either (x) ADSs representing the Registrable Shares owned by such Shareholders, or (y) in the event that the Company shall receive a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the registration have previously registered under the Securities Act the sale to the public of all or a portion of preferred shares, the Registrable Shares owned by such Selling Shareholder's Registrable SecuritiesShareholders, in either case, that are identified in the Demand Notice in accordance with any reasonable and specifying the intended lawful method of disposition thereof, then distribution selected by them; and (ii) the Company shall promptly within 10 days after receipt of such Demand Notice give written notice to the other Shareholders of their right to include in such Registration Statement any Registrable Shares owned by them (or ADSs representing any Registrable Shares owned by them, as applicable) that such Shareholders shall request the Company to include therein by written notice given to the Company no more than 20 days after receipt of such requested registration (a "Demand Registration") to notice from the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will Company. The Company shall thereafter use its best commercially reasonable efforts to effecteffect the registration of the Registrable Shares (and/or ADSs representing any Registrable Shares owned by them, as expeditiously as possible, applicable) identified by the registration under Shareholders in the Securities Act of:
preceding clauses (i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
and (ii) all other Registrable Securities as soon as practicable, but in any event within 90 days from receipt of the same type as that to which Demand Notice. If the request by method of distributing the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholdersoffering is an underwritten public offering, the "Holders") has requested Company may designate the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by managing underwriter for such Holders of such written notice given by the Companyoffering, all subject to the extent necessary to permit approval of the disposition (in accordance with the intended methods thereof as aforesaid) Shareholders holding a majority of the Registrable Securities so Shares included referred to in the Demand Notice (such approval not to be registered; provided that, subject to Section 5.01(dunreasonably withheld).
(b) hereof, the The Company shall not be obligated to effect use its commercially reasonable efforts to file and cause to become effective: (i) more than five Demand Registrations for two Registration Statements initiated pursuant to Section 2(a); or (ii) any Registration Statement pursuant to Section 2(a) during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the CSH ShareholdersSecurities Act or any successor forms thereto) pursuant to which New Preferred Shares or ADSs representing New Preferred Shares are to be or were sold under the Securities Act (A) has been filed and not withdrawn or has been declared effective within the prior 180 days and (B) in connection with any such registration statement that has not been declared effective, the Company is in good faith using commercially reasonable efforts to cause such registration statement to become effective.
(c) With respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares (or any ADSs representing Primary Shares or Other Shares); and provided further provided, however, that if the managing underwriter advises the Company that the Company inclusion of all Registrable Shares, Primary Shares and Other Shares (and/or ADSs representing all Registrable Shares, Primary Shares and Other Shares) proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares (and/or ADSs representing Registrable Shares, Primary Shares and Other Shares) proposed to be included in such registration shall be included in the following order:
(i) first, the Registrable Shares (and/or ADSs representing Registrable Shares, as applicable) held by the Shareholders requesting that their Registrable Shares (or ADSs representing Registrable Shares, as applicable) be included in such registration pursuant to Section 2(a), pro rata based upon the number of Registrable Shares (or ADSs representing Registrable Shares, as applicable) owned by each such Shareholder at the time of such registration; provided, however, that the number of Registrable Shares (or ADSs representing Registrable Shares) held by the Shareholders to be included in such underwriting shall not be obligated to effect a Demand Registration reduced unless the aggregate proceeds expected to be received all Primary Shares and Other Shares (and/or ADSs representing Primary Shares and Other Shares, as applicable) are first entirely excluded from the sale underwriting;
(ii) second, the Primary Shares; and
(iii) third, the Other Shares; provided, however, that, a registration shall not be counted as “effected” for the purposes of this Section 2 and shall not count as a registration initiated pursuant to this Section 2 for purposes of Section 2(b)(i) above, if, as a result of an exercise of the Common Stock underwriter’s cutback provisions in this clause (c), fewer than one-half of the total number of Registrable Shares or ADSs representing Registrable Shares, as applicable, that the Shareholders have requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodregistration statement are actually included.
(bd) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities A requested to be included therein. The Selling Shareholders requesting a registration under this Section 5.01(a) may, at any time 2 may be rescinded prior to such registration being declared effective by the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, SEC by providing a written notice to the Company revoking from those Shareholders who initiated the request; provided, however, that such request, in which case such request, so revoked, rescinded registration shall be considered not count as a Demand Registration unless such revocation arose out registration initiated pursuant to this Section 2 for purposes of the fault of Section 2(b)(i) above if the Company shall have been reimbursed (pro rata by the Shareholders requesting registration or unless the participating Shareholders reimburse the Company in such other proportion as they may agree) for all costs reasonable and documented out-of-pocket expenses incurred by the Company in connection with such rescinded registration; provided, further, however, that if, at the time of such rescission, the Shareholders who initiated the request shall have learned of an event that is, or is reasonably likely to result in, a material adverse change in which case the Company’s business, financial condition or results of operations from that known to such Shareholders at the time of their request and have withdrawn the request with reasonable promptness after learning of such information then the Shareholders shall not be considered a Demand Registration.
(c) The required to reimburse the Company will pay all Registration Expenses for any out-of-pocket expenses incurred by the Company in connection with any Demand Registration.
(d) A such rescinded registration requested and such rescinded registration shall not count as a registration initiated pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto 2 for purposes of clause (i) has become effective under the Securities Act and of subsection (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effectedb).
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Azul Sa), Registration Rights Agreement (Azul Sa)
Demand Registration. (a) If At any time after the earlier of (i) three (3) years from the date hereof or (ii) one hundred eighty (180) days after the consummation by the Company of its Initial Public Offering, if the Company shall receive a written request by from, in the CSH Shareholders case of clause (any i), Stockholders holding more than forty-nine percent (49%) of the then outstanding Registrable Securities and, in the case of clause (ii), Stockholders holding more than twenty percent (20%) of the then outstanding Registrable Securities (such requesting PersonPersons, a "Selling Shareholder"the “Requesting Stockholders”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least fifteen (15) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, other Stockholders and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Stockholders have requested to register by the Selling Shareholdersregistration under this Section 5.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 5.01(e), all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder other Stockholders (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholders, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days thirty (one of which shall be a 30) Business Day) Days after the receipt by such Holders of such written notice given by Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that no Person may participate in any registration statement pursuant to this Section 5.01(a) unless such Person agrees to sell their Registrable Securities to the underwriters selected as provided in Section 5.05(f) on the same terms and conditions as apply to the Requesting Stockholders; provided, however, that no such Registering Stockholders shall be required to make any representations or warranties in connection with any such registration other than representations and warranties as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, that such liability will be limited to, the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five three Demand Registrations for (other than short-form registrations on Form S-3 and such additional registrations, if applicable, to provide each Initial Investor with the CSH Shareholders; opportunity to participate in at least one Demand Registration and provided further that the Company no Demand Registration shall not be obligated to effect made within 180 days of a prior Demand Registration), or any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds Registration are at least (A) $7,500,000. In no event will the Company be required to effect more than one 50 million if such Demand Registration within would constitute the Initial Public Offering, or (B) $25 million in any four-month periodDemand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the 10-day thirty (30) Business Day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, a majority of the Requesting Stockholders may revoke such request, request without liability to any of the other HoldersRegistering Stockholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any each Demand Registration, regardless of whether such Registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least one hundred twenty (120) days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than seventy-five percent (75%) of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Demand Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than fifty percent (50%) of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholders that, in its view, (i) the number of shares of Registrable Company Securities requested that the Registering Stockholders and the Company propose to be included include in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Demand Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Demand Maximum Offering Size:;
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Requesting Stockholders (allocated, if necessary for the offering not to exceed the Demand Maximum Offering Size, pro rata among such Holders Requesting Stockholders on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each),
(ii) second, all Registrable Securities requested to be included in such registration by any other Registering Stockholders (allocated, if necessary for the offering not to exceed the Demand Maximum Offering Size, pro rata among such other Registering Stockholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each); and
(Biii) secondthird, any securities all Registrable Securities proposed to be registered by the Company.
(f) Upon written notice The Company may defer the filing (but not the preparation) of a registration statement required by Section 5.01 until a date not later than one hundred twenty (120) days after the date which is thirty (30) days after the request to each Selling Shareholderfile registration statement if (i) at the time the Company receives the request to register shares, the Company may postpone effecting a or any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice statement (but not exceeding 90 days (which period may would not be extended or renewedrequired if such registration statement were not filed), if (1) an investment banking firm of recognized national standing shall advise and the Board determines in good faith that such disclosure would be materially detrimental to the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced its stockholders, or (2ii) prior to receiving the Company is in possession of material non-public information request to register shares, the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests Board had determined to effect a registered underwritten Public Offering of the Company.
(g) After ’s securities for the Company’s account and the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stockhad taken substantial steps (including, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersbut not limited to, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning selecting a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by managing underwriter for such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required offering) and is proceeding with reasonable diligence to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersoffering. The other provisions A deferral of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statementpursuant to this Section 5.01(f) shall be in connection with an Underwritten Public Offeringlifted, and if the managing underwriter requested registration statement shall advise be filed forthwith, if, in the case of a deferral pursuant to clause (i) of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 5.01(f), the Company shall promptly (but in writing thatany event within ten (10) days), in its opinionupon determining to seek such deferral, deliver to each Requesting Stockholder a certificate signed by an executive officer of the use Company stating that the Company is deferring such filing pursuant to this Section 5.01(f) and a general statement of another form the reason for such deferral and an approximation of the anticipated delay. The Company may defer the filing of a particular registration statement is of material importance pursuant to the success of such proposed offering, then such registration shall be effected on such other formthis Section 5.01(f) only once.
Appears in 2 contracts
Sources: Stockholders' Agreement (Corsair Capital LLC), Stockholders Agreement (NewStar Financial, Inc.)
Demand Registration. (a) If at any time following the Closing of the Purchase Agreement, the Company shall receive a written request by (a “Demand Notice”) from the CSH Shareholders Stockholder (any such requesting Person, a "Selling Shareholder"referred to herein as the “Requesting Stockholder”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least 2 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated pricing date of the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, offering relating to such Demand Registration to any other stockholders having similar rights and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Stockholder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholdersregistration under this Section 2.01; and
(ii) subject to the restrictions set forth in Sections 2.01(d) and 2.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholder that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder stockholders with rights to request registration (all such Shareholdersstockholders, together with the Selling ShareholdersRequesting Stockholder, and any stockholders participating in a Piggyback Registration pursuant to Section 2.02, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days one (one of which shall be a 1) Business Day) Day after the receipt by such Holders of such written notice given by Registering Stockholders receive the Company, ’s notice of the Demand Registration; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided provided, however, that, subject to Section 5.01(d) hereof2.01(c), the Company shall not be obligated to effect more than five one Demand Registrations for Registration within a 12 month period requested by the CSH ShareholdersStockholder; and provided further provided, that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to Notice may only be received from made if the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included thereinregistered in the aggregate is reasonably expected to result in gross cash proceeds in excess of $10,000,000. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company liable for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effectuated.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Stock Issuance and Purchase Agreement (Uqm Technologies Inc), Stock Issuance and Purchase Agreement (Uqm Technologies Inc)
Demand Registration. If at any time the Purchaser shall request the Company in writing (a) If each, a "Demand"), to register under the Securities Act a specified number of Registrable Securities (including Registrable Securities to be used to settle a Derivative Security), the Company shall receive a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company use its best efforts to effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by as soon as reasonably practicable so as to permit the Selling Shareholderssale thereof, then held by and in connection therewith shall prepare and file a Registration Statement with the Selling ShareholdersSEC under the Securities Act to effect such registration; and
provided, that each such request shall (i) specify the number of shares of Registrable Securities intended to be offered and sold, (ii) all other Registrable Securities describe the nature or method of the same type proposed offer and sale thereof, and (iii) contain the undertaking of the Purchaser to provide all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registration Statement. Except as provided in the following sentence, the Company agrees not to grant to any other person registration rights pursuant to which such person would have the right to register shares of Common Stock on a Registration Statement filed by the Company pursuant to the exercise of the Purchaser's rights under this Agreement. The Purchaser agrees that the Company may grant to the "Holders" (as that to which term is defined in each of the request by Registration Rights Agreement between the Selling Shareholders relates which any Company and Bell ▇▇▇antic Corporation, dated February 2, 2000 (▇▇▇ "▇▇▇▇ ▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder eement") and the Registration Rights Agreement between the Company and Cable and Wireless plc, dated February 2, 2000 (all such Shareholders, together with the Selling Shareholders, the "HoldersC&W Agreement")) has requested the Company right to register by written request received shares of Common Stock on a Registration Statement filed by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all pursuant to the extent necessary to permit exercise of the disposition Purchaser's rights under this Section 2.01 of this Agreement, provided, that, so long as this Agreement or any successor agreement remains in full force and effect (a) such registrations are effected in accordance with the intended methods thereof as aforesaidterms of Section 2.2(b) of the Registrable Securities so to be registered; provided that, subject to Bell ▇▇▇antic Agreement or Section 5.01(d2.2(b) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand RegistrationC&W Agreement, in as the reasonable opinion of CSH exercised in good faithcase may be, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
and (b) Promptly after the expiration neither Section 2.2(b) of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the Bell ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request antic Agreement nor Section 2.2(b) of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning C&W Agreement is modified or amended in a majority manner that is adverse to the Purchaser without the prior written consent of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersPurchaser.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (NTL Inc/De/), Registration Rights Agreement (NTL Delaware Inc)
Demand Registration. (a) If the Company shall receive a written request by from either DLJMB on behalf of the CSH Shareholders DLJ Entities or, in the case of a CVC Demand, CVC on behalf of the CVC Entities (any such requesting Personthe DLJ Entities or, in respect of a CVC Demand, the CVC Entities, shall be referred to herein as a "Selling ShareholderRequesting Stockholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling ShareholderRequesting Stockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request, including the CVC Demand, shall be referred to herein as a "Demand Registration") at least 15 days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, Other Stockholders and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling ShareholdersRequesting Stockholder; and
(ii) subject to the restrictions set forth in Section 5.02, all other Registrable Securities of the same type class as that requested to which the request be registered by the Selling Shareholders relates Requesting Stockholder which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Other Stockholder entitled to request the Company to effect an Incidental Registration pursuant to Section 5.02 (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholder, the "Holders") has requested that the Company to register by written request received by the Company within 10 15 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall (i) not be obligated to effect more than five Demand Registrations for the CSH Shareholders; DLJ Entities, (ii) be obligated to effect one Demand Registration for the CVC Entities (the "CVC Demand") which shall be exercisable by CVC on behalf of any CVC Entities only if immediately prior thereto (A) the Transfer Percentage of the CVC Entities is less than the Transfer Percentage of the DLJ Entities and provided further that (B) the DLJ Entities have transferred (other than to any of their Permitted Transferees) 70% or more of the sum of (x) their collective Initial Ownership of Common Stock and (y) any additional shares of Common Stock issued by the Company shall to the DLJ Entities after the date hereof in an issuance of Common Stock that was offered to the DLJ Entities and the CVC Entities on a pro rata basis and (iii) not be obligated to effect a any Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH DLJSC exercised in good faith, equals or exceeds (x) $7,500,00050,000,000 if such Demand Registration would constitute the First Public Offering, or (y) $25,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration hereunder within any four-month period.
(b) Promptly after the expiration of the 1015-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) Requesting Stockholder may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other HoldersStockholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration, or unless such revocation arose out of the fault of the Company, in which case such request shall not be considered a Demand RegistrationRegistration and the Company shall be obligated to pay all Registration Expenses in connection with such revoked request.
(c) The Company will be liable for and pay all Registration Expenses in connection with any Demand RegistrationRegistration pursuant to this Section 5.01, regardless of whether it is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) all has remained effective for a period of the Registrable Securities registered thereunder have been sold; provided that if, within at least 180 days after it has become effective, the offering of Registrable Securities pursuant without being subject to such registration is interfered with by any stop order, injunction injunction, or other order or requirement of the SEC Commission or any other governmental agency authority for any reason (or court such shorter period in which all Registrable Securities of the Holders requested to be included in such registration will be deemed not to have actually been effectedsold thereunder).
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders Requesting Stockholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares securities which can be sold without having an adverse effect on such offering, including the price at which such shares securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration Requesting Stockholder and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata rata, among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); andprovided that if the Transfer Percentage of CVC is less than the Transfer Percentage of the DLJ Entities collectively at such time, the amount of Registrable Securities which will be allocable to CVC pursuant to this subsection shall be increased by an amount such that, after giving effect to the sale of all Registrable Securities in such offering, the Transfer Percentage of CVC would equal the Transfer Percentage of the DLJ Entities collectively;
(Bii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons with such priorities among them as the Company shall determine.
(f) Upon written notice to each Selling ShareholderIf, the Company may postpone effecting a registration in connection with any Demand Registration pursuant to this Section 5.01 on one occasion during with respect to the Common Shares or Preferred Shares, any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended Requesting Stockholder shall seek to Transfer any Warrants together with Common Shares or renewed)Preferred Shares, if (1) an investment banking firm of recognized national standing shall advise the Company and shall at the Selling Shareholders in writing that effecting the request of any such Stockholder effect a registration would materially and adversely affect an offering of securities of such Company Warrants to which the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable shall apply mutatis mutandis and a registration, pursuant to Demand Registrations requested by a shelf registration statement, so as to permit the CSH Shareholders resale of the Common Shares for which any Warrants so transferred may be exercisable. The Company shall apply, mutatis mutandis, to maintain the effectiveness of any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form shelf registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance take all actions necessary to the success permit resale of such proposed offering, then such registration shall Common Shares as may be effected on such other formrequired by applicable state securities laws.
Appears in 2 contracts
Sources: Investors' Agreement (Insilco Holding Co), Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Demand Registration. (ai) If At any time following the Company date that is one hundred and eighty (180) days after the closing date of the IPO, any Holder or group of Holders that holds Registrable Securities (the “Initiating Holder”) that desires to sell shall receive have the option and right, exercisable by delivering a written request by notice to the CSH Shareholders Partnership (any such requesting Persona “Demand Notice”), to require the Partnership to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a "Selling Shareholder") that Registration Statement registering the Company effect offering and sale of the registration under number and type of Registrable Securities on the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, terms and specifying conditions specified in the Demand Notice in accordance with the intended timing and method or methods of disposition thereofdistribution thereof specified in the Demand Notice (the “Demand Registration”).
(ii) Within two (2) Trading Days of the receipt of the Demand Notice, then the Company Partnership shall promptly give written notice of such requested registration (a "Demand Registration") Notice to all Holders and shall, subject to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholderslimitations of this Section 2(a), the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) file a Registration Statement covering all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so that the Holders shall in writing request (such request to be registered; provided that, subject given to Section 5.01(dthe Partnership within three (3) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale days of receipt of such notice of the Common Stock requested Demand Notice given by the Partnership pursuant to this Section 2(a)(ii)) to be included in such Demand Registration, Registration as promptly as practicable as directed by the Initiating Holder in accordance with the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration terms and conditions of the 10-day period referred Demand Notice and use all commercially reasonable efforts to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders cause such Registration Statement to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and remain effective under the Securities Act for not less than six (ii6) months following the Effective Date or such shorter period when all of the Registrable Securities registered thereunder covered by such Registration Statement have been soldsold (the “Effectiveness Period”); provided provided, however, that if, within 180 days after it has become effective, the offering Partnership shall not be required to effect the registration of Registrable Securities pursuant to such registration is interfered with by any stop orderthis Section 2(a) unless at least an aggregate of 2,500,000 Registrable Securities (as adjusted to reflect splits, injunction combinations, dividends and recapitalizations) are offered or other order or requirement the Registrable Securities are offered at an aggregate proposed offering price of the SEC or other governmental agency or court such registration will be deemed not to have been effectedless than $50 million.
(eiii) If Subject to the other limitations contained in this Agreement, the Partnership is not obligated hereunder to effect more than (A) one (1) Demand Registration on Form S-1 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period; provided, that notwithstanding anything in this Agreement to the contrary, the Partnership shall not be obligated to effect any Demand Registration on Form S-1 (or any equivalent or successor form under the Securities Act) that is not requested by a Sponsor or a Special Successor; and (B) two (2) Demand Registrations on Form S-3 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period.
(iv) Notwithstanding any other provision of this Section 2(a), the Partnership shall not be required to effect a registration or file a Registration Statement pursuant to this Section 2(a): (A) during the period starting with the date sixty (60) days prior to a good faith estimate, with the approval of a simple majority of the Board of Directors of the General Partner, of the date of filing of, and ending on a date ninety (90) days after the effective date of, a Partnership-initiated registration; provided that the Partnership is actively employing commercially reasonable efforts to cause such registration statement to become effective; (B) for a period of up to ninety (90) days after the date of a Demand Notice for registration pursuant to this Section 2(a) if at the time of such request (1) the Partnership is engaged, or has fixed plans with the approval of a simple majority of the Board of Directors of the General Partner to engage, within ninety (90) days of the time of such Demand Notice, in a firm commitment underwritten public offering of Common Units in which the Holders of Registrable Securities include Registrable Securities pursuant to Section 2(b), or (2) the Partnership is currently engaged in a self-tender or exchange offer and the filing of a Registration Statement would cause a violation of the Exchange Act; or (C) for a period of up to ninety (90) days, if (1) the General Partner determines that a postponement is in the best interest of the Partnership and its Limited Partners generally due to a pending transaction or (2) the General Partner determines that a postponement is in the best interest of the Partnership due to an investigation or other event (any such period, a “Suspension Period”); provided, however, that in no event shall the Partnership postpone or defer any Demand Registration pursuant to this Section 2(a)(iv) and/or Section 7(f) for more than an aggregate of one hundred and eighty (180) days in any twelve (12) month period.
(v) Notwithstanding any other provision of this Section 2(a), if (A) the Holders intend to distribute the Registrable Securities covered by a Demand Registration involves by means of an Underwritten Public Offering underwriting and (B) the managing underwriter advises the Partnership that the inclusion of all of the Holders’ Registrable Securities in the subject Registration Statement would have a material adverse effect on the timing or success of the offering, then the Partnership shall so advise the Company all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the Selling Shareholders that, in its view, (i) the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities requested held by all such Holders (including the Initiating Holders). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(vi) The Partnership may include in any such Demand Registration other Partnership Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter for the offering determines that the number of Partnership Securities proposed to be offered in such offering would have a material adverse effect on the timing or success of such offering, then the Registrable Securities to be sold by the Holders shall be included in such registration (including before any securities which the Company proposes Partnership Securities proposed to be included which are not Registrable Securities) or (ii) sold for the inclusion of some or all account of the shares of Partnership or any other Person.
(vii) Subject to the limitations contained in this Agreement, the Partnership shall effect any Demand Registration on Form S-3 (except if the Partnership is not then eligible to register for resale the Registrable Securities owned by the Holderson Form S-3, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting case such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if the Partnership becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities through a firm commitment underwriting shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Partnership); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Partnership that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Partnership will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Partnership shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other formdocuments, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(ix) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Partnership shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement.
(x) The Partnership shall use commercially reasonable efforts to become eligible to use Form S-3 and, after becoming eligible to use Form S-3, shall use commercially reasonable efforts to remain eligible to use Form S-3, including by timely filing all reports with the Commission and meeting the other requirements of the Exchange Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Chesapeake Midstream Partners, L.P.), Registration Rights Agreement (Chesapeake Midstream Partners, L.P.)
Demand Registration. (a) If In the Company shall receive a event that following 180 days after the effective date of the Registration Statement any Holder or Holders desire to sell shares of Registrable Securities owned by such Holder or Holders then upon the written request by the CSH Shareholders (of any such Holder or Holders requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion part of such Selling ShareholderHolder's or Holders' Registrable Securities, Securities and specifying the intended method of disposition thereof, then but subject to the limitations set forth herein, the Company shall will promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersall other Holders of Registrable Securities, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ ShareholdersCompany shall file with the Commission as promptly as practicable after sending such notice, and thereupon will use its best efforts to effectcause to become effective, as expeditiously as possible, the a registration statement under the Securities Act registering the offering and sale of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholderssuch Holder or Holders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") Company has been requested the Company to register by any other Holder thereof by written request received by given to the Company within 10 15 days (one of which shall be a Business Day) after the receipt by such Holders giving of such written notice given by the CompanyCompany (which request shall specify the intended method of disposition of such Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended methods method thereof as aforesaid) of the Registrable Securities so to be registered; provided thatPROVIDED, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect file a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or registration request under this Section 2(a) (A) unless the participating Shareholders reimburse the Company for all costs incurred aggregate requests by the Company in connection Holder or Holders for such registration cover not less than an aggregate of 1,000,000 shares (adjusted for any stock splits, reverse stock splits or combination of shares) or (B) with respect to more than one such registration, in which case such registration per calendar year; provided that a request may cover fewer than 1,000,000 shares (but not less than 500,000 shares) if the total number of shares of Registrable Securities then outstanding is less than 1,000,000. A request for registration under this Section 2(a) shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless counted for purposes of the registration statement relating thereto foregoing limitation (i) unless a registration statement has become effective and has been kept continuously effective for the period required under the Securities Act and Section 4(b), (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days if after it has become effective, the offering use of Registrable Securities pursuant to such registration statement is interfered with suspended by any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency or court such court, (iii) if no Registrable Securities are sold within the period during which the registration will statement has been kept continuously effective as required under Section 4(b). A Holder may, in connection with a request for registration under this Section 2(a), specify that the Registrable Securities are to be deemed not to have been effected.
(e) If sold on a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise delayed or continuous basis, in which case the Company and shall file a Shelf Registration Statement with respect thereto; provided, that each of the Selling Shareholders that, in its view, following conditions has been satisfied: (i) the Company is eligible to file a registration statement on Form S-3, (ii) a period of six years has elapsed since the effective date of the Registration Statement and (iii) the total number of Registrable Securities outstanding constitutes 30% or less of the total number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersoutstanding.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Vysis Inc), Registration Rights Agreement (Vysis Inc)
Demand Registration. (a) If At any time after the Company date which is 180 days following the Registration Date, if JPM DJ shall receive a written request by state in writing that it desires to sell Registrable Shares in the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that public securities markets and requests the Company Corporation to effect the registration under the Securities Act of all or a portion Registrable Shares, the Corporation shall within 10 days of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly request give written notice of such requested proposed registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders all holders of Registrable Shares and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts shall offer to effect, as expeditiously as possible, the include in such proposed registration under the Securities Act of:
(i) the only Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock Shares requested to be included in such Demand Registration, proposed registration by such holders who respond in writing to the reasonable opinion Corporation within thirty (30) days after delivery of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
such notice (b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and which request shall specify the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested Shares proposed to be included in such registration). The Corporation shall, subject to SECTION 2(b) below, promptly thereafter use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Corporation has been so requested to register for sale in accordance with the method of distribution specified in the initiating request. If JPM DJ so elects, the offering of such Registrable Shares pursuant to such registration shall be in the form of an underwritten offering in which case JPM DJ shall select one or more nationally recognized firms of investment bankers reasonably acceptable to the Corporation to act as the lead managing underwriter or underwriters in connection with such offering and shall select any additional investment bankers and managers to be used in connection with the offering.
(b) Anything contained in SECTION 2(a) to the contrary notwithstanding, the Corporation shall not be obligated to effect pursuant to SECTION 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Corporation shall not be obligated to use its best efforts to file and cause to become effective (A) more than three Registration Statements initiated pursuant to SECTION 2(a); PROVIDED HOWEVER, that if JPM DJ is unable to sell at least 75% of the Registrable Shares requested to be included in a registration pursuant to SECTION 2(a) as a result of an underwriter's cutback, then JPM DJ shall be entitled to an additional demand registration pursuant to this SECTION 2(b)(i), or (B) any Registration Statement during any period in which any other Registration 3 Statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 180 days;
(ii) the Corporation may delay the filing or effectiveness of any Registration Statement pursuant to SECTION 2(a) for a period of up to 90 days after the date on which the Corporation gives notice to the Investors pursuant to this SECTION 2(b)(ii) if at the time of such notice (i) the Corporation is engaged, or has fixed plans to engage within 90 days of the time of such notice, in a firm commitment underwritten public offering of Primary Shares in which JPM DJ may include Registrable Shares pursuant to SECTION 4, or (ii) the Board reasonably determines that such registration and offering would interfere with any Material Transaction involving the Corporation; PROVIDED, HOWEVER, that the Corporation may only delay the filing or effectiveness of a Registration Statement pursuant to this SECTION 2(b) for a total of 180 days after the date of a request for registration pursuant to SECTION 2(a); and
(Biii) secondwith respect to any registration pursuant to SECTION 2(a), the Corporation may include in such registration any securities Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Corporation that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) FIRST, the Registrable Shares held by the Investors requesting that their Registrable Shares be included in such registration initiated pursuant to SECTION 2(a) (or, if necessary, such Registrable Shares PRO RATA among the holders thereof based upon the number of Registrable Shares requested to be registered by each such holder);
(B) SECOND, the CompanyPrimary Shares; and
(C) THIRD, the Other Shares (or, if necessary, such Other Shares PRO RATA among the holders thereof based upon the number of Other Shares requested to be registered by each such holder).
(fc) Upon A requested registration under this SECTION 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to each Selling Shareholderthe Corporation from JPM DJ; PROVIDED, HOWEVER, that the Company may postpone effecting requested registration which has been rescinded shall count as a demand registration pursuant to this Section 5.01 for purposes of SECTION 2(b)(i) unless the request for withdrawal shall have been the result of, or made in response to, a material adverse change or event on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days business, properties, condition (which period may not be extended financial or renewedotherwise), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests operations of the CompanyCorporation.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dj Orthopedics Capital Corp), Registration Rights Agreement (Dj Orthopedics Inc)
Demand Registration. (a) If From the later of (i) the date on which the Company shall receive a written is eligible to file registration statements on Form S-3; or (ii) one year after the date of this Agreement (the "Registrable Date"), until the third anniversary of the Registrable Date, subject to the terms of this Agreement, the holders of at least 50% of the then outstanding shares of the Registrable Securities may request by the CSH Shareholders one (any such requesting Person, a "Selling Shareholder"1) that the Company effect the registration under the Securities Act of all or a portion part of such Selling Shareholder's their Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration Securities (a "Demand Registration"), provided, however, that the Company must then be eligible to file registration statements on Form S-3 or any similar short-form registration. Within twenty (20) days after receipt of any request pursuant to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersthis Section 2.1, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts Company shall give written notice of such request to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all holders of Registrable Securities and shall include in such registration all Registrable Securities with respect to which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
received written requests for inclusion within fifteen (ii15) all other Registrable Securities days after delivery of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period's notice.
(b) Promptly after The Company shall include in any Demand Registration any Registrable Securities; provided, however, if the expiration Demand Registration is an underwritten public offering and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included exceeds the number of securities which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the 10-day period referred to in Section 5.01(a)(ii) hereofRegistrable Securities initially requesting registration, the Company will notify all the Holders to be included shall include in the Demand Registration of the other Holders and the such registration only that number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) maywhich in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, at any time prior to pro-rata among the effective date respective holders thereof on the basis of the registration statement relating to amount of Registrable Securities owned by each such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registrationholder.
(c) The Company will pay all may postpone for up to ninety (90) days the filing or the effectiveness of a registration statement for a Demand Registration Expenses if the Company reasonably believes that such Demand Registration would have an adverse effect on any proposal or plan by the Company or any of its subsidiaries to engage in connection with any Demand Registrationacquisition of assets (other than in the ordinary course of business) or any merger, consolidation, reorganization, tender offer or other significant transaction.
(d) A registration requested pursuant The party originally requesting a Demand Registration shall have the right to this Section 5.01 select the managing underwriters to administer the offering anticipated by any Demand Registration; provided, however, that such managing underwriters are recognized nationally and are approved by the Company, which approval shall not be deemed to have been effected unless unreasonably withheld, conditioned or delayed. Notwithstanding the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that ifforegoing, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which if the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, participate in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size")Demand Registration, the Company will include in such registration, in shall have the priority listed below, up sole and exclusive right to select the Maximum Offering Size:
(Aunderwriter(s) first, all Registrable Securities requested to be registered by administer the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Companyoffering.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Bingham Financial Services Corp), Registration Rights Agreement (Bingham Financial Services Corp)
Demand Registration. (a) If Commencing upon the expiration of any lock-up agreement that the Holders have entered into with the underwriters in connection with an Initial Offering pursuant to SECTION 2.10, subject to the limitations set forth in this SECTION 2, the Holders of not less than 60% of the then outstanding Registrable Securities (the "REQUESTING HOLDERS") may at any time give to the Company shall receive a written request for the registration (a "DEMAND REGISTRATION") by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion any part of the Registrable Securities held by such Requesting Holders. Within 15 business days after the receipt by the Company of any such written request, the Company will give written notice of such Selling Shareholder's request to all Holders of Registrable Securities.
(b) Subject to the limitations set forth in this SECTION 2, after the receipt of a written request for a Demand Registration, (i) the Company will be obligated to include in such Demand Registration all Registrable Securities with respect to which the Company receives from Holders of Registrable Securities the written requests of such Holders for inclusion in such Demand Registration, within 30 days after the date on which the Company gives to all Holders a written notice of registration request pursuant to SECTION 2.1(a), and specifying (ii) the Company shall file a registration statement covering all such Registrable Securities as soon as practicable after receipt of the written requests of such Holders for inclusion in such Demand Registration, and shall use its commercially reasonable efforts to effect the registration of all such Registrable Securities. All written requests made by Holders of Registrable Securities pursuant to this SECTION 2.1(b) will specify the number of Registrable Securities to be registered and will also specify the intended method of disposition thereof, then . If the Company shall promptly give written notice of such requested registration (a "Demand Registration") Requesting Holders intend to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) distribute the Registrable Securities which by means of an underwriting, they shall so advise the Company has been so requested in their request. The underwriter shall be reasonably acceptable to register by the Selling ShareholdersCompany.
(c) The registration statement filed pursuant to any Demand Registration pursuant to this SECTION 2.1 may, then subject to the limitations set forth in this SECTION 2, include other securities of the Company which are held by persons other than the Selling Shareholders; and
(ii) all other Registrable Securities Holders who, by virtue of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together agreements with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all are entitled to include their securities in any such registration.
(d) The Company shall not be required to effect any Demand Registration of any Registrable Securities pursuant to this SECTION 2.1 if the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) anticipated aggregate offering price, net of underwriting discounts and commissions, of the Registrable Securities so to be registered; provided that, subject to Section 5.01(dwill not equal or exceed fifteen million dollars ($15,000,000).
(e) hereof, the The Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one two (2) Demand Registrations pursuant to this SECTION 2.1.
(f) The Company will not be obligated to effect any Demand Registration within of any fourRegistrable Securities pursuant to this SECTION 2.1 during the period commencing on the date falling 90 days prior to the Company's estimated date of filing of, and ending on the date 180 days following the effective date of, any registration statement pertaining to any registration initiated by the Company, for the account of the Company (other than with respect to securities registered solely in connection with acquisitions, employee benefit plans, and the like), if the written request of the Requesting Holders for such Demand Registration pursuant to SECTION 2.1(a) hereof is received by the Company after the Company has commenced an underwritten registration initiated by the Company and provides reasonable evidence that it commenced activities directly related to such filing before receiving the written request of the Holders; PROVIDED, HOWEVER, that the Company will use its commercially reasonable efforts in good faith to cause any such registration statement to be filed and to become effective as expeditiously as is reasonably possible.
(g) The Company will not be obligated to effect any Demand Registration of any Registrable Securities pursuant to this SECTION 2.1 for not more than a 120-day period, if: (i) in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing for a period of not more than 120 days after receipt of the request of the Requesting Holders; and FURTHER PROVIDED, that the Company shall not defer its obligation in this manner more than once in any twelve-month period.
(bh) Promptly after If the expiration managing underwriters in any Demand Registration advise the Company that the number of securities proposed to be included in such registration exceeds, in the opinion of the 10-day period referred managing underwriters of such registration in light of marketing factors, the number of securities to in Section 5.01(a)(iiwhich such registration should be limited (the "UNDERWRITERS' MAXIMUM NUMBER"), then: (i) hereof, the Company will notify all the be obligated to include in such registration that number of Registrable Securities requested by Holders to be included in such registration as does not exceed the Demand Registration Underwriters' Maximum Number, and such number of Registrable Securities will be allocated PRO RATA among such Holders on the basis of the other Holders and number of Registrable Securities held by each such Holder; (ii) if the Underwriters' Maximum Number exceeds the number of Registrable Securities requested by Holders to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to in such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to then the Company revoking will be entitled to include in such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out registration that number of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred securities as has been requested by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration for the account of the Company and that is not greater than such excess; and (including any iii) if the Underwriters' Maximum Number exceeds the sum of the number of Registrable Securities that the Company is obligated under clause (i) above to include in such Demand Registration plus the number of securities which that the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include offer and sell for its own account in such registration, then the Company may include in such registration that number of other securities as security holders other than Holders may have requested be included in such registration and that is not greater than such excess, and such number of excess securities will be allocated PRO RATA among such security holders other than the priority listed below, up to Holders on the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by basis of the parties requesting number of such Demand Registration and all Registrable Securities securities requested to be included in such registration by each such security holder. Neither the Company nor any of its other Holder security holders will be entitled to include any securities in any underwritten Demand Registration unless the Company or such security holders (allocated, if necessary for as the offering not case may be) agree in writing to exceed the Maximum Offering Size, pro rata among sell such Holders securities on the basis of same terms and conditions as apply to the relative number of Registrable Securities so requested held by Holders to be included in such registration); and
(B) second, any securities proposed to be registered by the CompanyDemand Registration.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Investor Rights Agreement (Synta Pharmaceuticals Corp), Investor Rights Agreement (Synta Pharmaceuticals Corp)
Demand Registration. (a) If the Company shall receive a written request be requested in writing by the CSH Shareholders (any such requesting PersonPurchaser, or by Holders who beneficially own at least 7,000,000 Purchaser Shares, to effect a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereofPurchaser Shares in accordance with this Section 9.2, then the Company shall promptly give written notice of such requested proposed registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, Purchaser and all Holders and shall offer to include (subject to the ▇▇▇▇▇ Shareholders terms of this Agreement) in such proposed registration any Purchaser Shares requested to be included in such proposed registration by such holders who respond in writing to the Company's notice within 15 days after delivery of such notice (which response shall specify the number of Purchaser Shares proposed to be included in such registration and the ▇▇▇▇▇▇▇▇ Shareholdersintended method of distribution, which may be pursuant to a shelf registration). Such written registration request shall specify the approximate number of Purchaser Shares requested to be registered and thereupon will the anticipated per share price range for such offering. The Company shall promptly use its best efforts to effect, as expeditiously as possible, the effect such registration on an appropriate form under the Securities Act of:
(i) of the Registrable Securities Purchaser Shares which the Company has been so requested to register by the Selling Shareholdersregister; provided, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholderhowever, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further -------- ------- that the Company shall not be obligated to effect any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to file a Demand Registration registration statement pursuant to this Section 9.2 prior to the first anniversary of the Closing Date unless (x) a Person other than the Purchaser or a Holder exercises a demand registration right (in which case the Company must immediately comply with any demand made hereunder) other than the registration rights referred to in Section 6.1(f) hereof or (y) executive officers (as such term is defined in Rule 3b-7 under the Exchange Act) of the Company shall have sold an aggregate proceeds expected of 850,000 or more shares of Common Stock from and after the Closing Date or (z) ▇▇▇▇▇ ▇▇▇▇▇▇ shall have sold an aggregate of 600,000 or more shares of Common Stock from after the Closing Date;
(ii) the Company shall not be obligated to file more than (a) three registration statements in total pursuant to this Section 9.2 plus (b) one additional registration statement registering all Purchaser Shares then owned by the Purchaser, subject to paragraph (c) below;
(iii) the Company shall not be obligated to file or cause to be received from declared effective any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the sale Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 180 days, provided, that the Company shall use reasonable efforts to -------- achieve a shorter period or to have such restrictions released in less than 180 days or (B) the Company has determined in good faith that the filing of a registration statement would require the Common Stock requested disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, such filing to be delayed until the date which is 90 days after such request for registration pursuant to this Section 9.2; provided that the Company may only so delay the filing or -------- effectiveness of a registration statement pursuant to this Section 9.2(a)(iii)(B) on one occasion during any twelve month period;
(iv) with respect to the registration pursuant to this Section, the Company may include in such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter advises the -------- ------- Company in writing that the inclusion of all Purchaser Shares, Primary Shares and Other Shares proposed to be included in such Demand Registrationregistration would adversely affect the successful marketing (including pricing) of all such securities, then the number of Purchaser Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the reasonable opinion following order:
(A) First, the Purchaser Shares held by all Selling Investors, ----- pro rata based upon the number of CSH exercised in good faithPurchaser Shares owned by each such --- ---- Selling Investor at the time of such registration;
(B) Second, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.Primary Shares; and ------
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders Person requesting a registration under pursuant to this Section 5.01(a) may, at in the notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such Person shall elect one or more nationally recognized firms of investment banks to act as the managing underwriters and shall select any time prior additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the effective date of the Company. The Company shall, together with Selling Investors, if it proposes to sell Primary Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration statement relating to such registration, revoke such request, without liability to any of the other Holders, under this Section 9.2 may be rescinded by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered by the Selling Investors holding a Demand Registration unless such revocation arose out majority of the fault Purchaser Shares to be included in such registration under the following circumstances:
(A) If such registration statement is rescinded prior to the filing date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section 9.2 for purposes of paragraph (a) above;
(B) If such registration statement is rescinded after the Company or unless filing date but prior to its effective date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section 9.2 for purposes of paragraph (a) above if the participating Shareholders reimburse Selling Investors (x) have reimbursed the Company for all costs out-of-pocket expenses incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.rescinded registration or (y)
(c1) The reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company will pay all Registration Expenses in connection with any Demand Registration.of such fact and requested that the Company correct such alleged misstatement or omission and (3) the Company has refused to correct such alleged misstatement or omission; and
(dC) A registration requested shall not count as a registration statement initiated pursuant to this Section 5.01 shall not be deemed to have been effected for purposes of paragraph (a) above unless the registration statement relating thereto (i) has become it becomes effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, either (i) the number Selling Investors are able to sell at least 80% of shares of Registrable Securities requested the Purchaser Shares sought to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) statement or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance kept effective for at least 180 days prior to the success of such proposed offering, then such registration shall be effected on such other formrescission notice.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Apollo Investment Fund Iv Lp), Securities Purchase Agreement (Rare Medium Group Inc)
Demand Registration. (a) 2.1 If the Company shall receive on or after the date that is nine (9) months following the date hereof a written request by from the CSH Shareholders holders of a majority of the Registrable Securities then outstanding (any such requesting Person, a "Selling Shareholder"“Initiating Investors”) that the Company file a registration statement under the Securities Act for an offering of the Registrable Securities on a continuous basis pursuant to Rule 415 under the Securities Act (a “Demand Registration”), covering the registration of Registrable Securities with an aggregate offering price, net of any placement agent fees, broker’s fees, and commissions on similar discounts, fees or commissions, of at least $5 million, then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all holders of the Registrable Securities and shall, subject to the limitation of this Section 2.1, use its reasonable best efforts to effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested holders request to register by the Selling Shareholders, then held by the Selling Shareholders; and
be registered within twenty (ii20) all other Registrable Securities days of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders mailing of such written notice given by the Company, all . Any request made pursuant to this Section 2.1 shall be addressed to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) attention of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, Secretary of the Company and shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and specify the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) mayregistered, at the intended methods of disposition thereof which shall not include any time prior to underwritten, agency or similar method and that the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered request is for a Demand Registration unless such revocation arose out pursuant to this Section 2.1. In connection with the Demand Registration, the Company shall:
(a) Be entitled to postpone for up to ninety (90) days from the date of request of the fault Initiating Investor the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to Section 2.1, if the board of directors of the Company determines, in its good faith reasonable judgment, that such registration and the Transfer or unless the participating Shareholders reimburse Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company for all costs incurred by or any of its wholly owned subsidiaries and the Company promptly gives the Initiating Investors notice of such determination;
(b) Use its reasonable best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, and in connection with such any event within ninety (90) days of the receipt of the request for the registration, in which case such request shall not be considered giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a Demand Registration.registered public offering;
(c) The Company will pay Use its reasonable best efforts to keep the relevant registration statement Continuously Effective for the lesser of two (2) years or until such time as all holders who included Registrable Securities in the Registration Expenses in connection with Statement no longer hold any Demand Registration.Registrable Securities (the “Registration Period”). Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or postponed, the foregoing period shall be extended by the aggregate number of days of such suspension or postponement; and
(d) A Be obligated to effect no more than one (1) Demand Registration. For purposes of the preceding sentence, registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it unless a registration statement with respect thereto has become effective, or (ii) if after such registration statement has become effective, such registration or the offering related offer, sale or distribution of Registrable Securities pursuant to such registration thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency or court for any reason not attributable to the Selling Investors and such registration will be deemed interference is not to have been effectedthereafter eliminated.
2.2 A registration pursuant to this Section 2 shall be on such appropriate registration form of the Commission as shall (ei) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise be selected by the Company and be reasonably acceptable to the Majority Selling Investors and (ii) permit the disposition of the Registrable Securities in accordance with the intended method of disposition specified in Section 2.1.
2.3 The Company shall furnish to one firm of counsel for the Selling Shareholders thatInvestors (selected by Majority Selling Investors) copies of the filed registration statement or prospectus or any amendments or supplements thereto in the form substantially as proposed to be filed with the Commission at least five (5) business days prior to filing for review and comment by such counsel, which opportunity to comment shall include the right to contest disclosure if the applicable Selling Investor reasonably believes that such disclosure contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
2.4 The Company shall prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in its viewconnection with such registration statement as may be necessary to comply with the provisions of the Securities Act and rules thereunder with respect to the disposition of all securities covered by such registration statement. The Company shall amend the registration statement or supplement the prospectus so that it will remain current and in compliance with the requirements of the Securities Act for the Registration Period, (i) and if during such period any event or development occurs as a result of which the number registration statement or prospectus contains a misstatement of shares a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, the Company shall promptly notify each Selling Investor, amend the registration statement or supplement the prospectus so that each will thereafter comply with the Securities Act and furnish to each Selling Investor of Registrable Securities requested such amended or supplemented prospectus, which each such Investor shall thereafter use in the Transfer of Registrable Securities covered by such registration statement. Pending such amendment or supplement each such Investor shall cease making offers or Transfers of Registrable Securities pursuant to be the prior prospectus. In the event that any Registrable Securities included in such a registration (including any securities statement subject to, or required by, this Agreement remain unsold at the end of the period during which the Company proposes is obligated to be included which are not use its reasonable best efforts to maintain the effectiveness of such registration statement, the Company may file a post-effective amendment to the registration statement for the purpose of removing such Securities from registered status.
2.5 The Company shall furnish to each Selling Investor of Registrable Securities) or (ii) the inclusion , without charge, such numbers of some or all copies of the shares registration statement, any pre-effective or post-effective amendment thereto, the prospectus, including each preliminary prospectus and any amendments or supplements thereto, in each case in conformity with the requirements of the Securities Act and the rules thereunder, and such other related documents as any such Selling Investor may reasonably request in order to facilitate the disposition of Registrable Securities owned by such Selling Investor.
2.6 The Company shall use its reasonable best efforts (i) to register and qualify the Holderssecurities covered by such registration statement under such other securities or Blue Sky laws of such states or jurisdictions as shall be reasonably requested by the Majority Selling Investors, and (ii) to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of the offer and transfer of any of the Registrable Securities in any jurisdiction, at the earliest possible moment; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business, subject itself to taxation in any such case, exceeds states or jurisdictions or to file a general consent to service of process in any such states or jurisdictions.
2.7 The Company shall promptly notify each Selling Investor of any stop order issued or threatened to be issued by the largest number Commission in connection therewith (and take all reasonable actions required to prevent the entry of shares which can be sold without having such stop order or to remove it if entered).
2.8 The Company shall make generally available to its security holders an adverse effect on earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than ninety (90) days after the end of the twelve (12)-month period beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of each registration statement filed pursuant to this Agreement.
2.9 The Company shall make available for inspection by any Selling Investor and the representatives of such offering, including the price at which Selling Investor (but not more than one firm of counsel to such shares can be sold (the "Maximum Offering Size"Selling Investors), all financial and other information as shall be reasonably requested by them, and provide the Selling Investor and the representatives of such Selling Investor the opportunity to discuss the business affairs of the Company will include in such registration, in with its principal executives and independent public accountants who have certified the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be audited financial statements included in such registration by any other Holder (allocatedstatement, if in each case, as shall be necessary for to enable them to exercise their due diligence responsibility under the offering Securities Act; provided, however, that information that the Company determines, in good faith, to be confidential and which the Company advises such Person in writing, is confidential shall not be disclosed unless such Person signs a confidentiality agreement reasonably satisfactory to exceed the Maximum Offering Size, pro rata among such Holders on Company or the basis of the relative number related Selling Investor of Registrable Securities so requested agrees to be included in responsible for such registration); and
(B) second, any securities proposed Person’s breach of confidentiality on terms reasonably satisfactory to be registered by the Company.
(f) Upon written notice 2.10 The Company shall provide and cause to each Selling Shareholder, be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement.
2.11 The Company may postpone effecting shall use its reasonable best efforts to provide a CUSIP number for the Registrable Securities prior to the earlier of the listing of such Registrable Securities on the New York Stock Exchange or the effective date of the first registration pursuant statement including Registrable Securities.
2.12 The Company shall take such other actions as are reasonably required in order to this Section 5.01 on one occasion during any period expedite or facilitate the disposition of six consecutive months for a reasonable time specified Registrable Securities included in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the CompanyDemand Registration.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Investment Agreement (Urstadt Biddle Properties Inc), Registration Rights Agreement (Urstadt Biddle Properties Inc)
Demand Registration. (a) If At any time following 180 days after the Company shall receive Initial Public Offering, any Stockholder may give a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that to the Company to effect the registration under the Securities Act (other than pursuant to a registration statement on Form S-4 or S-8 or any similar or successor form under the Securities Act) of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, which written request shall specify the number of Registrable Securities to be registered and specifying the intended method of disposition thereof. At any time the Company is eligible for use of Form S-3ASR, then such registration shall occur on such form. Upon the receipt of such written request, the Company shall promptly give written notice (via facsimile or electronic transmission) of such requested registration (each such registration shall be referred to herein as a "“Demand Registration"”) at least 10 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersanticipated filing date of the Registration Statement relating to such Demand Registration to any other Stockholders. Thereafter, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will Company shall use its best commercially reasonable efforts to effect, as expeditiously soon as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Stockholder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; andregistration under this Section 2.01;
(ii) all other Registrable Securities of the same type class or series as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholder that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has other Stockholder have requested the Company to register by written request received by the Company within 10 days Business Days after such Stockholders receive the Company’s notice of the Demand Registration; and
(one of which shall iii) any Company Securities to be a Business Day) after the receipt by such Holders of such written notice given offered or sold by the Company, ; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaiddescribed in the Requesting Stockholder’s written request) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof2.01(d), the Company shall not be obligated to effect more than five (1) any such Demand Registrations for Registration (i) within the CSH Shareholders; and provided further that Specified Period after the effective date of any other registration statement of the Company shall not be obligated to effect in connection with which Stockholders were given Piggyback Registration rights (other than a registration statement filed in connection with an employee benefit plan or business combination transaction or a registration statement on Form S-4 or S-8) or (ii) in accordance with Section 2.01(f), (2) any Demand Registration unless if the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand RegistrationRegistration is less than $25,000,000, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will (3) any Demand Registration requested by a KPS Stockholder if the Company be required has completed five Demand Registrations after the date hereof as a result of requests by KPS Stockholders pursuant to effect more than one this Section 2.01(a) or (4) any Demand Registration within requested by a Stockholder other than the KPS Stockholders if the Company has completed two Demand Registrations after the date hereof as a result of requests by Stockholders other than KPS Stockholders pursuant to this Section 2.01(a). A Requesting Stockholder may require any four-month periodDemand Registration that involves a Public Offering of at least $25,000,000 to be conducted as an underwritten offering.
(b) Promptly after the expiration of the 10-day 10 Business Day period referred to in Section 5.01(a)(ii) hereof2.01(a)(ii), the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included thereinin the Demand Registration. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement Registration Statement relating to such registrationDemand Registration, the Requesting Stockholder may upon notice to the Company, revoke such requestrequest in whole or in part with respect to the number of shares of Registrable Securities requested to be included in such Registration Statement, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand RegistrationRegistering Stockholders.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective; provided, however, that if the Requesting Stockholder revokes its request in whole pursuant to Section 2.01(b), the Requesting Stockholder shall reimburse the Company for and/or pay directly one-half (100%, in the case of a Requesting Stockholder other than a KPS Stockholder) of the Registration Expenses incurred relating to such Demand Registration.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have occurred or have been effected completed for purposes of Section 2.01(a):
(i) unless the registration statement Registration Statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained continuously effective for a period of at least (x) 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been soldsold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.04(a); provided that such Registration Statement shall not be considered a Demand Registration if, within 180 days after it has become such Registration Statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 662/3% of the Registrable Securities of the Requesting Stockholder sought to be included in such registration will be deemed not to have been effectedare included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the lead managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an a material and adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration Requesting Stockholder and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, to give first priority to the inclusion of the Registrable Securities of the Requesting Stockholder and, thereafter, pro rata among such Holders the remaining Registering Stockholders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registrationregistration by each such Registering Stockholder); and;
(Bii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(f) Upon written notice Notwithstanding anything to each Selling Shareholderthe contrary contained in this Agreement, but subject to the limitation set forth in the next succeeding paragraph, the Company may postpone effecting shall be entitled to suspend its obligation to file (but not the preparation of) any Registration Statement in connection with a registration Demand Registration and any Shelf Registration, file any amendment to such a Registration Statement, furnish any supplement or amendment to a prospectus included in such a Registration Statement, make any other filing with the SEC, cause such a Registration Statement or other filing with the SEC to become or remain effective or take any similar action (collectively, “Registration Actions”) upon (i) the issuance by the SEC of a stop order suspending the effectiveness of any such Registration Statement or the initiation of proceedings with respect to such a Registration Statement under Section 8(d) or 8(e) of the Securities Act, (ii) the Board’s determination, in its good faith judgment, that any such Registration Action should not be taken because it would reasonably be expected to materially interfere with or require the public disclosure of any material corporate development or plan, including any material financing, securities offering, acquisition, disposition, corporate reorganization or merger or other transaction involving the Company or any of its subsidiaries or (iii) the Company possessing material non-public information the disclosure of which the Board determines, in its good faith judgment, would reasonably be expected to not be in the best interests of the Company. Upon the occurrence of any of the conditions described in (i), (ii) or (iii) above, the Company shall give prompt notice of such suspension (and whether such action is being taken pursuant to (i), (ii) or (iii) above) (a “Suspension Notice”) to the Stockholders. Upon the termination of such condition, the Company shall give prompt notice thereof to the Stockholders and shall promptly proceed with all Registration Actions that were suspended pursuant to this Section 5.01 paragraph. The Company may only suspend Registration Actions pursuant to the preceding paragraph on one occasion two occasions during any one-year period of six consecutive months for a reasonable time specified in the notice Suspension Notice but not exceeding an aggregate of 90 days (which period may not be extended or renewed) (each such occasion, a “Suspension Period”), if . Each Suspension Period shall be deemed to begin on the date the relevant Suspension Notice is given to the Stockholders and shall be deemed to end on the earlier to occur of (1i) an investment banking firm of recognized national standing shall advise the date on which the Company gives the Stockholders a notice that the Suspension Period has terminated and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2ii) the Company is date on which the number of days during which a Suspension Period has been in possession effect exceeds the 90-day period. If the filing of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one any Demand Registration by the CSH Shareholders is suspended pursuant to this Section 5.01 of Common Stock2.01(f), once the Suspension Period ends the Requesting Stockholder may request a new Demand Registration. Notwithstanding anything to the contrary in this Agreement, the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersCompany shall not be in breach of, upon request or failed to comply with, any obligation under this Agreement where the Company acts or omits to take any action in order to comply with applicable law, any interpretation of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority staff of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (SEC or any successor order or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use decree of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formany court or governmental agency.
Appears in 2 contracts
Sources: Investor Rights Agreement (Global Brass & Copper Holdings, Inc.), Investor Rights Agreement (Global Brass & Copper Holdings, Inc.)
Demand Registration. (a) If Subject to the limitations set forth in this Agreement, at any time after the date which is 90 days after the Closing Date, the Holder may request the Company to register under the Securities Act, all or any portion (but not less than $2.0 million of the Holder's Restricted Securities) of its Restricted Securities for sale on terms and conditions comparable to those normally applicable to offerings of equity securities in similar circumstances as determined by the Company on Form S-3 or such other form as the Company deems appropriate; provided, however, that the request for registration must be for a Shelf Registration Statement pursuant to Rule 415 under the Securities Act. The Company shall be obligated to register Restricted Securities pursuant to this Section 2.2(a) on two occasions only, provided, however, that such registrations shall be counted only if (A) the corresponding Registration Statements have become effective under the Securities Act, and (B) the public offerings have been consummated on the terms and conditions specified therein or if not consummated, such failure was not attributable to an action taken by the Company. The Company shall be entitled to include in any Shelf Registration Statement filed pursuant to this Section 2.2(a) securities of the Company held by any other shareholder of the Company and, in an underwritten public offering, Common Stock of the Company to be sold by the Company for its own account so long as the inclusion of such additional securities will not result in a decrease of the amount of Restricted Securities to be registered pursuant to this Section 2.2(a).
(b) In connection with the Shelf Registration Statement, the Company shall receive a written request by comply with all the CSH Shareholders (any provisions of Section 2.4 below and shall use its reasonable efforts to effect such requesting Person, a "Selling Shareholder") that registration to permit the Company effect sale of the registration under the Restricted Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying being sold in accordance with the intended method or methods of disposition thereofdistribution thereof (as indicated in the information furnished to the Company pursuant to Section 2.2(c)). Subject to Section 2.2(d), then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effectkeep each such Shelf Registration Statement continuously effective, supplemented and amended as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register required by the Selling Shareholders, then held by the Selling Shareholders; and
(iiprovisions of Section 2.2(d) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit ensure that it is available for resales of Restricted Securities by the disposition (in accordance Holder, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of 18 months from the Effective Time or such longer period as required by Section 2.2(d) or such shorter period that will terminate when all the securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or otherwise cease to be Restricted Securities (the "Effective Period"). Upon the occurrence of any event that would cause any Shelf Registration Statement or the Prospectus contained therein (i) to contain a material misstatement or omission or (ii) not to be effective and usable for sale or resale of Restricted Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Shelf Registration Statement or the related Prospectus or any document incorporated therein by reference, in the case of clause (i), correcting any such misstatement or omission, and, in the case of either clause (i) or (ii), use its reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for its intended methods purpose(s) as soon as practicable thereafter.
(c) The Holder may not include any of its Restricted Securities in a Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 30 Business Days after receipt of a written request therefor, such information specified in Item 507 of Regulation S-K under the Securities Act and such other information as the Company may reasonably request for use in connection with a Shelf Registration Statement or Prospectus or preliminary Prospectus included therein and in any application to the NASD. The Holder agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
(d) Notwithstanding anything to the contrary contained herein, if (x) the Board determines in good faith that the registration and distribution of Restricted Securities (or the use of any such Shelf Registration Statement or the Prospectus contained therein) would interfere with any proposed or pending material corporate transaction involving the Company or any of its subsidiaries or would require premature disclosure thereof as aforesaidor would require the Company to disclose information that the Company has not otherwise made public and that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and (y) the Company notifies the Holder in writing not later than three days following such determination (such notice a "Blackout Notice"), the Company may (A) postpone the filing of such Shelf Registration Statement or (B) allow such Shelf Registration Statement to fail to be effective and usable or elect that such Shelf Registration Statement not be usable for a reasonable period of time, but not in excess of 30 days (a "Blackout Period"); provided, however, that the aggregate number of days included in all Blackout Periods shall not exceed 90 during any consecutive 12 months and shall not exceed 150 during the period specified in Section 2.2(b) of this Agreement; and provided, further, that the Registrable Securities so Effective Period referred to in Section 2.2(b) during which a Shelf Registration Statement is required to be registered; provided that, subject effective and usable shall be extended by the aggregate number of days during which such Shelf Registration Statement was not effective or usable pursuant to Section 5.01(dthe foregoing provisions.
(e) hereofNotwithstanding anything to the contrary contained herein, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect file a Demand Shelf Registration unless the aggregate proceeds expected to be received from the sale Statement in respect of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Restricted Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto 2.2 if: (i) the Company has become effective under previously filed a Shelf Registration Statement with respect to Restricted Securities, and a period of at least 180 days has not elapsed from the Securities Act date on which the Effective Period of such Shelf Registration Statement has expired; and (ii) all of the Registrable Company has previously filed a Company Registration Statement pursuant to which Restricted Securities registered thereunder have been sold; provided that ifregistered under Section 2.3 hereof, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If and a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in at least 120 days has not elapsed from the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities Effective Time of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the CompanyRegistration Statement.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Wasteco Ventures LTD), Registration Rights Agreement (Compost America Holding Co Inc)
Demand Registration. (a) If Subject to the terms and conditions of this Agreement, on or after the earlier of (i) the first anniversary of the Closing Date or (ii) the registration of shares of Common Stock (other than Broker Shares) held by the Founders or any shareholder holding at least 5% of the Company's then outstanding Common Stock (calculated as though all shares of Preferred Stock are converted into Common Stock), the Purchasers or their Permitted Transferees holding in the aggregate at least 40% of the outstanding Registrable Securities may make two (2) written request to the Company shall receive a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the for registration under the Securities Act of all or a portion the sale of Registrable Securities held by such Selling Shareholder's Registrable Securities, and specifying Registering Purchasers (the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
); provided that (i) BellSouth shall be one of the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
Purchasers making such request and (ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five one (1) Demand Registrations Registration pursuant to this Agreement within any 12-month period. Promptly following receipt of any request for the CSH Shareholders; and provided further that a Demand Registration under this Section 8.2.1(a), the Company shall not be obligated to effect immediately notify any holders of Registrable Securities from whom a request for a Demand Registration unless has not been received and shall include in such Demand Registration such Registrable Securities as such holders may specify in writing within 10 Business Days after receipt of such notice. The Company shall use its reasonable best efforts to cause such registration statement to become effective as soon as possible and remain effective for the aggregate proceeds expected to be received period ending on the earlier of (i) 90 days from the date of effectiveness of said registration statement and (ii) the sale of all of Registrable Securities held by such Registering Purchasers.
(b) The Company shall have the Common Stock requested right to include its securities sold on its behalf or on behalf of any other stockholder in any registration initiated as a Demand Registration; provided that: (i) such securities are of the same class as the Registrable Securities included in such registration; (ii) if any of the Registrable Securities covered by such registration are sold in an underwritten offering, the Company or such other stockholder agrees in writing to sell its securities on the same terms and conditions as apply to the Registrable Securities being sold; and (iii) if any of the Registrable Securities covered by such registration are to be sold in an underwritten offering and the managing underwriter of such underwritten offering reasonably determines in good faith and advises the parties that the inclusion in such underwritten offering of all the securities proposed to be included in such offering would materially and adversely affect the success of the underwritten offering, then the Company shall include in such registration (but only to the extent of the number of securities that the Company is so advised can reasonably be sold in such offering), FIRST all Registrable Securities duly requested to be registered in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will SECOND any securities the Company be is required to effect register pursuant to the Registration Rights Agreement, THIRD any other securities held by Persons who received contractual registration rights with respect thereto prior to the date of this Agreement, FOURTH any securities that the Company wishes to register for its own account and FIFTH any securities held by Persons who received contractual registration rights with respect thereto after the date of this Agreement; in each case, determined on a pro rata basis if there is more than one Demand Registration within any four-month period.
(b) Promptly after holder of such Registrable Securities or securities, as the expiration of case may be. Whenever a registration requested pursuant to this Section is for an underwritten offering, only securities which are to be distributed by the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to underwriters may be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all shall have the right to select the managing underwriter to administer the Demand Registration Expenses if such Demand Registration is an underwritten offering, subject to the approval of BellSouth, which approval shall not be unreasonably withheld or delayed. The Registering Purchasers and the Company shall enter into an underwriting agreement in connection such customary form as shall have been negotiated and agreed to by the Company with any Demand Registrationthe underwriter or underwriters selected for such underwriting, provided that (x) the Registering Purchasers shall have the right to negotiate the economic terms of the offering and (y) such underwriting agreement shall be approved by the Registering Purchasers, such approval not to be unreasonably withheld or delayed.
(d) A Notwithstanding anything to the contrary in this Agreement, the Company will be entitled to postpone the filing of a registration requested statement required to be filed by it pursuant to this Section 5.01 Agreement for ninety (90) days, if (i) at any time prior to the filing of such registration statement a majority of the Board of Directors of the Company determines, in its good faith business judgment, that such registration and offering is reasonably likely to materially interfere with or otherwise have a material adverse effect on any financing, acquisition, corporate reorganization or other material transaction or development involving the Company or any of its subsidiaries and (ii) the Company gives the Registering Purchasers written notice of such postponement, provided that such postponements may not in any 365-day period occur more than once, and, provided further, that in the event of any such withdrawal or termination of effectiveness, such registration shall not act as a registration effected for purposes of Section 8.2.1(a). Any such notice need not specify the reasons for such suspension if a majority of the Board of Directors of the Company determines, in its good faith business judgment, that doing so would interfere with or adversely affect such transaction or development or would result in the disclosure of material non-public information. In the event of such postponement, the Company will file such registration statement as soon as practicable after it determines, in its good faith business judgment, that such registration and offering will not interfere with the matters described in the first sentence of this Section 8.2.1(d), but in no event more than ninety (90) days after that date that such registration statement would otherwise have been filed, provided that the Registering Purchasers shall have the right to withdraw their request for Demand Registration by giving written notice to the Company within ninety (90) days of receipt of the notice of postponement, and in the event of such withdrawal, the request so withdrawn shall be deemed to have not been effected unless made.
(e) Each Registration Statement in respect of a Demand Registration will be for the registration statement relating thereto (i) has become effective offering and sale of such Registrable Securities on such basis as the Registering Purchasers reasonably request; provided, however, that, except as expressly set forth herein, the Company shall not be required to register such Registrable Securities on a continuous or delayed basis pursuant to Rule 415 under the Securities Act Act.
(f) The Company shall promptly prepare and file with the Commission such amendments to the registration statements as may be necessary to keep such registration statements effective in accordance with this Section 8.2.1.
(iig) all Notwithstanding anything to the contrary in this Agreement, if at any time after the filing of a registration statement, before or after it is declared effective by the Commission, a majority of the Registrable Securities registered thereunder have been sold; provided Board of Directors of the Company determines, in its good faith business judgment, that if, within 180 days after it has become effective, such registration and the offering of Registrable Securities pursuant to covered by such registration statement is interfered reasonably likely to materially interfere with by or otherwise have a materially adverse effect on any stop orderfinancing, injunction acquisition, corporate reorganization or other order material transaction or requirement development involving the Company or any of its affiliates or require the Company to disclose matters that otherwise would not be required to be disclosed at such time, then the Company may require that no distribution of any Registrable Securities be initiated or continued, as the case may be (a "Blackout Period"), by giving written notice to the Registering Purchasers. Any such notice need not specify the reasons for such suspension if a majority of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise Board of Directors of the Company and the Selling Shareholders thatdetermines, in its viewgood faith business judgment, that doing so would interfere with or adversely affect such transaction or development. In the event that such notice is given, then until a majority of the Board of Directors of the Company has determined, in its good faith business judgment, that such registration and distribution would no longer materially interfere with the matters described in the preceding sentence and has given written notice thereof to the Registering Purchasers, the Company's obligations under this Article VIII will be suspended, provided, that such suspension shall not exceed the first to occur of (ix) the number filing of shares the Company's next filing with the Commission and (y) ninety (90) days. The Company shall extend the period of Registrable Securities requested to be included in such registration (including any securities which time the Company proposes is required to be included which are not Registrable Securities) or (ii) maintain effective any registration statement required pursuant to Section 8.2.1 by a length of time equal to the inclusion of some or all aggregate length of the shares Blackout Periods. In the event of Registrable Securities owned by the Holders, in any such case, exceeds the largest number suspension of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified 8.2.1(g), the Registering Purchasers shall be entitled to withdraw from such registration upon written notice to the Company, and in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities event of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stockwithdrawal, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) so withdrawn shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance deemed to the success of such proposed offering, then such registration shall be effected on such other formhave not been made.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Starmedia Network Inc), Securities Purchase Agreement (Starmedia Network Inc)
Demand Registration. (a) If at any time following the earlier of (x) 180 days after the effective date of the registration statement for a Public Offering and (y) the expiration of the period during which the managing underwriters for such Public Offering shall prohibit the Company from effecting any other public sale or distribution of Registrable Securities, the Company shall receive a written request by from any Financial Investor (the CSH Shareholders (any such requesting Person, a "Selling “Requesting Shareholder"”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request, a "“Demand Registration"”) at least 30 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ registration statement relating to such Demand Registration to the other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Shareholder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholdersregistration under this Section 5.01; and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholder that any Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder with rights to request registration under Section 5.01 (all such Shareholders, together with the Selling Requesting Shareholders, and any Shareholders participating in a Piggyback Registration pursuant to Section 5.02, the "Holders"“Registering Shareholders”) has have requested the Company to register by written request received by the Company within 10 days (one of which shall be a 25 Business Day) Days after the receipt by such Holders of such written notice given by Shareholders receive the Company, ’s notice of the Demand Registration; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section Section 5.01(d) hereof), the Company shall not be obligated to effect more than five two Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a such Financial Investor, other than Demand Registration unless the aggregate proceeds expected to be received from the sale effected pursuant to a Registration Statement on Form F-3, for which an unlimited number of the Common Stock requested to Demand Registrations shall be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000permitted. In no event will shall the Company be required to effect more than one Demand Registration hereunder within any foursix-month period.
(b) Promptly after the expiration of the 1025-day Business Day-period referred to in Section Section 5.01(a)(ii) hereof), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) (A) unless the registration statement relating thereto (i1) has become effective under the Securities Act and (ii2) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been soldsold thereunder); provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 5.01(e) such that less than 662/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Requesting Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and Requesting Shareholders;
(ii) second, all Registrable Securities requested to be included in such registration by any other Holder Registering Shareholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders other Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each such Shareholder); and
(Biii) secondthird, any securities proposed to be registered by any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) Upon written notice to each Selling Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Requesting Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After At any time following the consummation of the initial Public Offering and when the Company has effected one Demand Registration by the CSH Shareholders pursuant is eligible to this Section 5.01 of Common Stockuse a Form F-3 registration statement, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date each Financial Investor may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required in writing to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions file an unlimited number of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement Statements on form S-3 Form F-3 (or any successor form to Form F-3, or similar short-any comparable form for Registration in a jurisdiction other than the United States) for a public offering of Registrable Securities for which the Company is entitled to use Form F-3 or a comparable form to register the requested Registrable Securities. Upon receipt of such a request the Company shall (i) promptly give written notice of the proposed registration statementto all other Shareholders and (ii) shall be in connection with an Underwritten Public Offeringas soon as practicable, and if in any event within ninety (90) days of the managing underwriter shall advise receipt of such request, cause the Registrable Securities specified in the request to be registered and qualified for sale and distribution in such jurisdictions as such Financial Investor may reasonably request. Each Financial Investor may at any time, and from time to time, require the Company in writing that, in its opinion, to effect the use registration of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formRegistrable Securities under this (g).
Appears in 2 contracts
Sources: Shareholder Agreement (ZTO Express (Cayman) Inc.), Shareholder Agreement (ZTO Express (Cayman) Inc.)
Demand Registration. (a) If Any Holder(s) of Registrable Securities (the “Initiating Holder”) shall have the right to request that the Company shall receive file a Registration Statement, on behalf of itself or, in the case of any member of the Shareholder Group, on behalf of any other member of the Shareholder Group, with the SEC on the appropriate registration form for all or part of the Registrable Securities held by such Initiating Holder, by delivering a written request by thereof to the CSH Shareholders Company specifying the number of shares of Registrable Securities such Initiating Holder wishes to register (any such requesting Persona “Demand Registration”); provided, a "Selling Shareholder") however, that the anticipated aggregate number of Company effect Ordinary Shares subject to such Demand Registration exceeds 2% of the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, total issued and specifying the intended method of disposition thereof, then the outstanding Company Shares. The Company shall promptly (i) within five (5) Business Days of the receipt of a Demand Registration, give written notice of such requested registration Demand Registration to all Holders of Registrable Securities, (a "Demand Registration"ii) to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its reasonable best efforts to effect, prepare and file the Registration Statement as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which possible but in any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company event within 10 45 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by request, and (iii) use reasonable best efforts to cause the Company, all Registration Statement to the extent necessary to permit the disposition (become effective in respect of each Demand Registration in accordance with the intended methods thereof as aforesaid) method of distribution set forth in the Registrable Securities so to be registeredwritten request delivered by the Initiating Holder; provided thatprovided, subject to Section 5.01(d) hereofhowever, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated required to effect cause such Registration Statement to become effective prior to the Listing Date. The Company shall include in such Registration all Registrable Securities with respect to which the Company receives, within the five (5) Business Days immediately following the receipt by the Holder(s) of such notice from the Company, a Demand request for inclusion in the Registration unless from the Holder(s) thereof. Each such request from a Holder of Registrable Securities for inclusion in the Registration shall also specify the aggregate proceeds expected amount of Registrable Securities proposed to be received from Registered. The Initiating Holder may request that the sale of the Common Stock requested to Registration Statement be included in such Demand Registrationon any appropriate form, including Form F-4 in the reasonable opinion case of CSH exercised in good faithan Exchange Offer or a Shelf Registration Statement, equals or exceeds $7,500,000. In no event will and the Company be required to shall effect more than one Demand the Registration within any four-month periodon the form so requested.
(b) Promptly after The Holder(s) may collectively make a total of six (6) Demand Registration requests pursuant to Section 2.01(a) (including any exercise of rights to Demand Registration transferred pursuant to Section 3.08); provided that the expiration of the 10Holder(s) may not make more than two (2) Demand Registration requests in any 365-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registrationperiod.
(c) The Company will pay all shall be deemed to have effected a Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to for purposes of this Section 5.01 2.01 if the Registration Statement is declared effective by the SEC or becomes effective upon filing with the SEC and remains effective until the earlier of (i) the date when all Registrable Securities thereunder have been Sold and (ii) 60 days from the effective date of the Registration Statement (or from the date the applicable Prospectus is filed with the SEC if the Company is satisfying a request for a Demand Registration by filing a Prospectus under an effective Shelf Registration Statement) (the “Registration Period”). No Registration shall not be deemed to have been effected unless effective if the registration statement relating thereto (i) has become effective under conditions to closing specified in the Securities Act and (ii) all underwriting agreement or dealer manager agreement, if any, entered into in connection with such Registration are not satisfied by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement or dealer manager agreement by the Registrable Securities registered thereunder have been sold; provided that ifCompany. If during the Registration Period, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration Registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency Governmental Entity or court the need to update or supplement the Registration Statement, the Registration Period shall be extended on a day-for-day basis for any period in which the Holders are unable to complete an offering as a result of such registration stop order, injunction or other order or requirement of the SEC or other Governmental Entity.
(d) With respect to any Registration Statement, whether filed or to be filed pursuant to this Agreement, if the Company shall reasonably determine, upon the advice of legal counsel, that maintaining the effectiveness of such Registration Statement or filing an amendment or supplement thereto (or, if no Registration Statement has yet been filed, filing such a Registration Statement) would require the public disclosure of material nonpublic information concerning any transaction or negotiations involving the Company or any of its consolidated Subsidiaries that would materially interfere with such transaction or negotiations (a “Disadvantageous Condition”), the Company may, for the shortest period reasonably practicable, and in any event for not more than 60 consecutive calendar days (a “Blackout Period”), notify the Holders whose offers and Sales of Registrable Securities are covered (or to be covered) by such Registration Statement (a “Blackout Notice”) that such Registration Statement is unavailable for use (or will not be deemed filed as requested). Upon the receipt of any such Blackout Notice, the Holders shall forthwith discontinue use of the Prospectus contained in any effective Registration Statement; provided, that, if at the time of receipt of such Blackout Notice any Holder shall have Sold its Registrable Securities (or have signed a firm commitment underwriting agreement with respect to the purchase of such shares) and the Disadvantageous Condition is not of a nature that would require a post-effective amendment to have the Registration Statement, then the Company shall use its commercially reasonable efforts to take such action as to eliminate any restriction imposed by federal securities laws on the timely delivery of such Registrable Securities. When any Disadvantageous Condition as to which a Blackout Notice has been effectedpreviously delivered shall cease to exist, the Company shall as promptly as reasonably practicable notify the Holders and take such actions in respect of such Registration Statement as are otherwise required by this Agreement. The effectiveness period for any Demand Registration for which the Company has given notice of a Blackout Period shall be increased by the length of time of such Blackout Period. In connection with the Company’s Registration obligation under this Section 2.01 and Section 2.03, Section 2.04 and Section 2.05, the Company shall not impose, in any 365-day period, Blackout Periods more than twice, and any such Blackout Periods may not last, in the aggregate, in excess of 90 calendar days during such 365-day period. If the Company declares a Blackout Period with respect to a Demand Registration for a Registration Statement that has not yet been declared effective, (i) the Holders may by notice to the Company withdraw the related Demand Registration request without such Demand Registration request counting against the number of Demand Registration requests permitted to be made under Section 2.01(b) and (ii) the Holders shall not be responsible for any of the Company’s related Registration Expenses.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise Initiating Holder so indicates at the Company and the Selling Shareholders thattime of its request pursuant to Section 2.01(a), in its view, (i) the number of shares such offering of Registrable Securities requested shall be in the form of an Underwritten Offering or an Exchange Offer, and the Company shall include such information in the written notice to be included the Holders required under Section 2.01(a). In the event that the Initiating Holder intends to Sell the Registrable Securities by means of an Underwritten Offering or Exchange Offer, the right of any Holder to include Registrable Securities in such registration (including any securities which the Company proposes to shall be included which are not Registrable Securities) conditioned upon such Holder’s participation in such Underwritten Offering or (ii) Exchange Offer and the inclusion of some such Holder’s Registrable Securities in the Underwritten Offering or all the Exchange Offer to the extent provided herein. The Holders of a majority of the shares of outstanding Registrable Securities owned by the Holders, being included in any such case, exceeds Underwritten Offering or Exchange Offer shall select the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, underwriter(s) in the priority listed below, up case of an Underwritten Offering or the dealer manager(s) in the case of an Exchange Offer; provided that such underwriter(s) or dealer manager(s) are reasonably acceptable to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, If the Company may postpone effecting managing underwriter or underwriters of a registration proposed Underwritten Offering of Registrable Securities included in a Registration pursuant to this Section 5.01 2.01 inform(s) in writing the Holders participating in such Registration, with a copy of such writing provided to the Company, that, in its or their opinion, the number of securities requested to be included in such Registration exceeds the number that can be Sold in such offering without being likely to have a significant adverse effect on one occasion during any period the price, timing or distribution of six consecutive months the securities offered or the market for a reasonable time specified the securities offered, the number of Registrable Securities to be included in such Registration shall be reduced to the notice but not exceeding 90 days (maximum number recommended by the managing underwriter or underwriter and allocated pro rata among the Holders, including the Initiating Holder, in proportion to the number of Registrable Securities each Holder has requested to be included in such Registration; provided, that the Initiating Holder may notify the Company in writing that the Registration Statement shall be abandoned or withdrawn, in which period may event the Company shall abandon or withdraw such Registration Statement. In the event the Initiating Holder notifies the Company that such Registration Statement shall be abandoned or withdrawn, such Holder shall not be extended or reneweddeemed to have requested a Demand Registration pursuant to Section 2.01(a), if (1) an investment banking firm and the Company shall not be deemed to have effected a Demand Registration pursuant to Section 2.01(b). If the amount of recognized national standing shall advise Registrable Securities to be underwritten has not been limited in accordance with the first sentence of this Section 2.01(f), the Company and the Selling Shareholders in writing that effecting holders of Company Shares or, if the registration would materially and adversely affect an offering Registrable Securities include securities other than Company Shares, the holders of securities of the same class of those securities included in the Registrable Securities, in each case, other than the Holders (“Other Holders”), may include such Company securities for their own account or for the preparation account of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified Other Holders in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise underwriter(s) so agree and to the Company in writing extent that, in its opinionthe opinion of such underwriter(s), the use of another form of registration statement is of material importance to the success inclusion of such proposed offering, then additional amount will not adversely affect the offering of the Registrable Securities included in such registration shall be effected on such other formRegistration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Terex Corp), Stock and Asset Purchase Agreement (Terex Corp)
Demand Registration. (ai) If A Holder or Holders that hold not less than a majority of the Company then outstanding Registrable Securities (such Holder or group being referred to as the “Initiating Holder”) shall receive have the option and right, exercisable by delivering a written request by notice to the CSH Shareholders Corporation (any such requesting Persona “Demand Notice”), to require the Corporation to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the SEC a "Selling Shareholder") Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Company effect Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the registration under contrary herein, in no event shall the Corporation be required to effectuate a Demand Registration for Registrable Securities Act having an aggregate value of all or a portion less than $3.5 million based on the VWAP of such Selling Shareholder's Registrable SecuritiesSecurities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, and specifying the intended method of disposition thereof, then the Company Corporation shall promptly give written notice of such requested registration (a "Demand Registration") Notice to all Holders and, as soon as reasonably practicable thereafter, but in no event more than 60 days following receipt of the Demand Notice, shall, subject to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholderslimitations of this Section 2(a), the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) file a Registration Statement covering all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so that the Holders shall in writing request (such request to be registered; provided that, subject given to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale Corporation within three days of receipt of such notice of the Common Stock requested Demand Notice given by the Corporation pursuant to this Section 2(a)(ii)) to be included in such Demand Registration, Registration as promptly as practicable as directed by the Initiating Holder in accordance with the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration terms and conditions of the 10-day period referred Demand Notice and use all commercially reasonable efforts to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders cause such Registration Statement to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold or otherwise cease to be Registrable Securities (iithe “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Corporation is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of six Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities registered thereunder held by the Holders providing such Demand Notice shall have been sold; provided that if, within 180 days after it has become effective, effective under the offering Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of on substantially the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering terms and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time conditions specified in the notice but not exceeding 90 days (which period may not be extended Demand Notice in accordance in all material respects with the intended timing and method or renewed), if (1) an investment banking firm methods of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period distribution thereof specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common StockNotice. In addition, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event Corporation will the Company not be required to effect more than two such Demand Registrations file a Registration Statement at a time when filing a Registration Statement would be prohibited by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing terms of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.customary
Appears in 2 contracts
Sources: Registration Rights Agreement (Magellan Petroleum Corp /De/), Registration Rights Agreement (Magellan Petroleum Corp /De/)
Demand Registration. (a) If the Company shall receive a written request by from, in the CSH Shareholders case of a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor Demand, any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor or, in the case of a HSBC Co-Investor Demand, any HSBC Co-Investor (any such requesting Personin the case of a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor Demand, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor or, in the case of a "Selling HSBC Co-Investor Demand, the HSBC Co-Investor shall be referred to herein as the “Requesting Shareholder"”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request, including a "HSBC Co-Investor Demand, shall be referred to herein as a “Demand Registration"”) at least 20 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ registration statement relating to such Demand Registration to the other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Shareholder has been so requested to register by the Selling Shareholdersregistration under this Section 5.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholder that any Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder with rights to request registration under Section 5.01 or any Servidio Shareholder Section 5.02 (all such Shareholders, together with the Selling ShareholdersRequesting Shareholder, and any Shareholders participating in a Piggyback Registration pursuant to Section 5.02, the "Holders"“Registering Shareholders”) has have requested the Company to register by written request received by the Company within 10 days (one of which shall be a 15 Business Day) Days after the receipt by such Holders of such written notice given by Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; , provided that, subject to Section 5.01(d) hereof), the Company shall not be obligated to effect more than five (i) four Demand Registrations in the aggregate for the CSH Shareholders▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investors (each, a “▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor Demand”), other than any Demand Registration to be effected pursuant to a Registration Statement on Form S-3 (or any successor thereto), for which an unlimited number of Demand Registrations shall be permitted or (ii) one Demand Registration for the HSBC Co-Investors (the “HSBC Co-Investor Demand”) (it being understood that any such HSBC Co-Investor Demand can occur only following the first anniversary of the First Public Offering); and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,00050,000,000. In no event will shall the Company be required to effect more than one Demand Registration hereunder within any foursix-month period.
(b) Promptly after the expiration of the 1015-day Business Day-period referred to in Section 5.01(a)(ii) hereof), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 5.01(e) such that less than 66 2/3% of the Registrable Securities of the Registering Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Shareholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any all other Holder Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders other Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each such Shareholder); , and
(Bii) second, any securities proposed to be registered by for the account of any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) Upon written notice to each Selling Registering Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders Requesting Shareholder in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2ii) the Board shall have determined in good faith that the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After At any time following the Company has effected one Demand Registration by consummation of the CSH Shareholders pursuant to this Section 5.01 First Public Offering, upon the request of Common Stock, a Majority in Interest of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ShareholdersInvestors, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are shall use its best efforts to file a “shelf’ registration statement (the “Shelf Registration”) with respect to the Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested on an appropriate form pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 Rule 415 (or any successor similar provision that may be adopted by the SEC) under the Securities Act and to cause such Shelf Registration to become effective and to keep such Shelf Registration in effect until the Shareholders shall no longer hold any Registrable Securities. Any offer or similar short-form registration statement) sale of Registrable Securities pursuant to the Shelf Registration in any underwritten Public Offering shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance deemed to be a Demand Registration subject to the success provisions of such proposed offering, then such registration shall be effected on such other formSection 5.01(a).
Appears in 2 contracts
Sources: Shareholders Agreement (Tops Markets Ii Corp), Shareholders’ Agreement (Tops PT, LLC)
Demand Registration. (a) If At any time following the Company shall receive a written request by second (2nd) anniversary of the CSH Shareholders (any such requesting Persondate of this Agreement, a "Selling Shareholder") in the event that Shelf Registration Statement is not effective with the Company effect SEC covering all of the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling ShareholdersHolders, the "Holders") has requested Holders shall have the right, subject to the rules and regulations of the SEC, by delivering a written notice to the Company (a “Demand Notice”), to require the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (under and in accordance with the intended methods thereof as aforesaid) provisions of the Securities Act the number of Registrable Securities so Beneficially Owned by the Holders and requested by such Demand Notice to be registeredso registered (a “Demand Registration”); provided thatprovided, subject however , that the Holders in the aggregate shall not be entitled pursuant to this Section 5.01(d2.02 to require the Company to effectuate more than two (2) hereofDemand Registrations (which may collectively include underwritten Demand Registrations and Company Supported Distributions) during the Term of this Agreement. Notwithstanding the foregoing, if the at least 5,000,000 Preferred Shares (as adjusted for splits, dividends, reclassifications and the like) convert into the applicable number of Conversion Shares then the number of Demand Registrations that the Company may be obligated to undertake shall increase to three (3) and if at least 10,000,000 Preferred Shares (as adjusted for splits, dividends, reclassifications and the like) convert into the applicable number of Conversion Shares then the number of Demand Registrations that the Company may be obligated to undertake shall increase to four (4) and the Holders shall be entitled to deliver a Demand Notice for up to the two additional Demand Registrations any time after such conversion of the Preferred Shares into Conversion Shares has taken place. A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a Demand Notice, the Company shall use commercially reasonable efforts to file, as promptly as reasonably practicable, but not be obligated to effect more later than forty-five Demand Registrations for the CSH Shareholders; and provided further that (45) days after receipt by the Company shall of such Demand Notice provided that a Suspension Period is not be obligated in effect, a Registration Statement relating to effect a Demand Registration unless the aggregate proceeds expected to be received from the offer and sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included thereintherein by the Holders in accordance with the methods of distribution elected (a “Demand Registration Statement”) and shall use commercially reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof. The Selling Shareholders requesting Holders agree that if any Holder intends to distribute any Registrable Securities by means of an underwritten offering it shall promptly so advise the Company and the Company shall cooperate with the Holder to facilitate such distribution, including the actions required pursuant to Sections 2.05(a)(ix)-(xv) and, if a registration under Company Supported Distribution is requested, Section 5.01(a2.05(a)(xvi) mayso long as the Holders have not previously exhausted the limit for such Company Supported Distributions specified in Section 2.05(a)(xvi).
(b) The Holders agree that the Company may include any Other Securities covered by any Existing Registration Rights Agreements that it deems appropriate in any Demand Registration Statement filed pursuant to this Agreement, at any time prior subject to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, cutback limitations set forth in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand RegistrationSection 2.02(c) and Section 2.02(d).
(c) The In the event that the SEC sets forth a limitation on the securities that may be registered on a particular Demand Registration Statement, the Company will pay all may reduce the number of securities to be registered on such Demand Registration Expenses Statement to such number of securities as allowed by the SEC; provided, that, the Company shall include in connection with any such Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto Registration Statement (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effectivefirst, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares quantity of Registrable Securities requested to be included in such registration Demand Registration Statement and (including ii) second, any securities which remaining amounts, if any, shall be allocable to holders of Other Securities, pro rata, based on the number of Other Securities proposed by the Company proposes to be included which are not Registrable in such Demand Registration Statement and the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(d) or (ii) the inclusion of some or all If any of the shares Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter of such underwritten offering advises the Company or Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities owned proposed to be sold in such offering, together with any Other Securities proposed to be included by the Holders, Company or holders thereof which are entitled to include securities in any such caseRegistration Statement, exceeds the largest total number or dollar amount of shares which such securities that can be sold without having an adverse effect on such offeringthe price, including timing or distribution of the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting so included together with all such Demand Registration and all Registrable Securities requested to Other Securities, then there shall be included in such registration by any other Holder (allocatedfirm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter can be sold without so adversely affecting such offering, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among and such Holders on the basis of the relative number of Registrable Securities so requested and Other Securities shall be allocated for inclusion as follows:
(i) first, up to be eighty five percent (85%) of the total shares included in such registration)underwritten offering shall be comprised of the Registrable Securities for which inclusion in such underwritten offering was requested by the Holders; and
(Bii) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant include up to this Section 5.01 on one occasion during fifteen percent (15%) or such lower amount of the total shares included in such underwritten offering; and
(iii) third, any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed)remaining amounts, if (1) an investment banking firm any, shall be allocable to holders of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believesOther Securities, in its reasonable judgmentpro rata, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders based on the Closing Date may request that the Company register Common Stock which are Registrable number of Other Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected included in such underwritten offering and the number of Other Securities Beneficially Owned by each such holder of Other Securities;
(e) In the event of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least one hundred twenty (120) days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold.
(f) Any Holder whose Registrable Securities are covered by a Demand Registration shall have the right to notify the Company that it has determined that the Registration Statement relating to the Demand Registration be abandoned or withdrawn with respect to such Registrable Securities, in which event the Company shall promptly abandon or withdraw such Registration Statement with respect to such Registrable Securities. In the event that the Company has not yet filed the Demand Registration Statement with the SEC, such abandoned Demand Registration Statement shall not count against the limit for Demand Registrations specified in Section 2.02(a). However, if the Company has already filed the Demand Registration Statement with the SEC and the Holders request that it be withdrawn, the Holders agree that such withdrawn Demand Registration Statement shall count against the limit for Demand Registrations specified in Section 2.02(a) and will reimburse the Company for all Registration Expenses incurred by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be Company in connection with such withdrawn Demand Registration Statement, unless (i) such abandonment or withdrawal is based upon material adverse information concerning the Company that the Company has not publicly disclosed in compliance with applicable securities Laws at least five (5) Business Days prior to the Company’s receipt of such withdrawal request, or (ii) there occurs an Underwritten Public Offeringevent or series of related events that (A) has a material adverse effect on the business, and assets, condition (financial or otherwise) or results of operations of the Company or (B) has caused a Market Material Adverse Effect.
(g) In the case that Holders request a Company Supported Distribution in connection with a Demand Registration, the Holders shall have the right to notify the Company that they have determined that the offering be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw all activities undertaken in connection with such offering with respect to Registrable Securities. In the event that the Company has not yet Launched the offering, such withdrawn or abandoned offering shall not count against the limit of such Company Supported Distributions set forth in Section 2.05(a)(xvi). However, if such offering is abandoned or withdrawn after the managing underwriter offering has Launched, then such abandoned or withdrawn offering will count against the limit of such Company Supported Distributions set forth in Section 2.05(a)(xvi) unless (i) such abandonment or withdrawal is based upon material adverse information concerning the Company that the Company has not publicly disclosed in compliance with applicable securities Laws at least five (5) Business Days prior to the Company’s receipt of such withdrawal request, or (ii) there occurs an event or series of related events that (A) has a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company or (B) has caused a Market Material Adverse Effect. In the event that such offering is abandoned or withdrawn for any reason other than the reason set forth in clauses (i) or (ii) of the preceding sentences, the Holders shall advise reimburse the Company for all Registration Expenses incurred by the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of connection with any such proposed offering, then such registration shall be effected on such other formabandoned or withdrawn Company Supported Distribution.
Appears in 2 contracts
Sources: Registration Rights Agreement (General Electric Co), Registration Rights Agreement (General Electric Co)
Demand Registration. (ai) If Subject to the terms and conditions of this Agreement (including Section 2(b)(iii)), at any time on or after the earlier to occur of (A) the second (2nd) anniversary of the Effective Date and (B) the date that is one hundred eighty (180) days after the completion of the Initial Public Offering, upon written notice to the Company (a “Demand Notice”) delivered by (x) Holders beneficially owning not less than ten percent (10%) of the then outstanding shares of Company Common Stock in the aggregate or (y) a Holder that, together with its Affiliates, is both a Ten Percent Holder as of the date of this Agreement and could reasonably be considered an “Affiliate” (disregarding the proviso in the first sentence of the definition thereof) of the Company as of the date of such Demand Notice (an “Affiliated Holder”), which for the avoidance of doubt shall receive include any Holder with respect to which there is a written request director serving on the Board who was appointed by, or is otherwise employed by or affiliated with, such Holder or its Affiliates (each of the CSH Shareholders (foregoing being referred to as the “Initiating Holders”) at any such time requesting Person, a "Selling Shareholder") that the Company effect the registration (a “Demand Registration”) under the Securities Act of any or all or a portion of the Registrable Securities held by such Selling Shareholder's Registrable SecuritiesHolders, and specifying the intended method of disposition thereof, then the Company shall promptly (but in any event, not later than five (5) Business Days following the Company’s receipt of such Demand Notice) give written notice of the receipt of such requested Demand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Company shall promptly file the appropriate registration statement (a "the “Demand Registration"Registration Statement”) to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its reasonable best efforts to effect, as expeditiously as possibleat the earliest practicable date, the registration under the Securities Act of:
and under the applicable state securities laws of (i1) the Registrable Securities which the Company has been so requested to register by the Selling ShareholdersInitiating Holders in the Demand Notice, then held by the Selling Shareholders; and
and (ii2) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") Company has been requested the Company to register by the Demand Eligible Holders by written request received by (the “Demand Eligible Holder Request”) given to the Company within 10 days ten (one of which shall be a 10) Business Day) Days after the receipt by such Holders giving of such written notice given by the Company, in each case subject to Section 2(b)(v), all to the extent necessary required to permit the disposition (in accordance with the intended methods thereof as aforesaidof disposition) of the Registrable Securities so to be so registered; provided that.
(ii) The Company may effect any requested Demand Registration using Form S-3 whenever the Company is eligible to register for resale the Registrable Securities on Form S-3 (unless the Initiating Holder(s) or the managing underwriter(s) of such offering requests the Company to use a Form S-1 in order to sell all of the Registrable Securities requested to be sold). Subject to the terms and conditions of this Agreement (including Section 2(b)(iii)), subject for so long as the Company is eligible to register for resale the Registrable Securities on Form S-3, each Ten Percent Holder shall have the right to request an unlimited number of Demand Registrations using Form S-3, which shall not constitute a Demand Registration for purposes of determining the number of Demand Registrations limited under Section 5.01(d2(b)(iii)(B) hereofbelow.
(iii) Notwithstanding anything herein to the contrary, (A) the Company shall not only be obligated required to effect more than five comply with a Demand Registrations for the CSH Shareholders; and provided further Notice requesting that the Company conduct an Initial Public Offering when delivered by Holders of 25% or more of the outstanding shares of Company Common Stock, and (B) the Company shall only be required to (1) effect two Demand Registrations in any 6 month period, (2) effect a total of not be obligated to effect more than eight Demand Registrations by (x) Holders beneficially owning not less than 10% of the outstanding shares of the Company Common Stock in the aggregate and (y) Affiliated Holders, and an additional three Demand Registrations by each Ten Percent Holder throughout the term of this Agreement, and (3) comply with a request for a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will (other than a request that the Company be required to effect more than one conduct an Initial Public Offering) if the Initiating Holders, together with all other Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Eligible Holders to that request Registrable Securities be included in the Demand Registration of pursuant to Section 2(b)(i), are requesting the other Holders and the number registration of Registrable Securities requested Securities, which is reasonably expected to result in aggregate gross proceeds in excess of $50 million. In connection with a Demand Notice requesting that the Company conduct an Initial Public Offering, the Company shall use its reasonable best efforts to cause the Company Common Stock to be included therein. listed on the New York Stock Exchange or The Selling Shareholders requesting Nasdaq Global Market or any successor national securities exchange.
(iv) The Company shall use its reasonable best efforts to keep the Demand Registration Statement continuously effective under the Securities Act for the period of time necessary for the underwriters or Holders to sell all the Registrable Securities covered by such Demand Registration Statement or such shorter period which will terminate when all Registrable Securities covered by such Demand Registration Statement have been sold pursuant thereto (including, if necessary, by filing with the Commission a registration under Section 5.01(a) may, at any time prior post-effective amendment or a supplement to the effective date of Demand Registration Statement or the related Prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, if required by the rules, regulations or instructions applicable to the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, form used by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred such Demand Registration Statement or by the Company in connection with such registrationSecurities Act, in which case such request shall not be considered a any state securities or “blue sky” laws, or any other rules and regulations thereunder) (the “Effectiveness Period”). A Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 2(b) shall not be deemed to have been effected unless (A) if the registration statement relating thereto Registration Statement is withdrawn without becoming effective, (iB) has become if the Registration Statement does not remain effective under in compliance with the provisions of the Securities Act and (ii) all the laws of any state or other jurisdiction applicable to the disposition of the Registrable Securities registered thereunder have been sold; provided that covered by such Registration Statement for the Effectiveness Period, (C) if, within 180 days after it has become effective, the offering of Registrable Securities pursuant such Registration Statement is subject to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other governmental or regulatory agency or court for any reason other than a violation of applicable law solely by any selling Holder and has not thereafter become effective, (D) in the event of an underwritten offering, if the conditions to closing specified in the underwriting agreement entered into in connection with such registration will are not satisfied or waived other than by reason of some wrongful act or omission by an Initiating Holder, (E) if the Company does not include in the applicable Registration Statement any Registrable Securities held by a Holder that is required by the terms hereof to be deemed included in such Registration Statement, (F) if the Initiating Holders and Demand Eligible Holders have not been able to sell at least 75% of the Registrable Securities that they have requested to sell in the Demand Notice or Demand Eligible Holder Request, or (G) in the case of an Initial Public Offering only, if the Commission has indicated that all of its comments on the Registration Statement have been effectedcleared and the executive officers of the Company have participated in the related roadshow but the Registration Statement does not thereafter become effective.
(ev) If Notwithstanding any other provision of this Section 2(b), if (A) the Initiating Holders intend to distribute the Registrable Securities covered by a Demand Registration involves by means of an Underwritten Public Offering underwritten offering and (B) the managing underwriter shall underwriters advise the Company and the Selling Shareholders that, Initiating Holders that in its their reasonable view, (i) or, if such managing underwriters are unwilling to so advise the Company and the Initiating Holders, if the Company concludes after consultation with such managing underwriters and the Holders of Registrable Securities proposed to be included in such offering that in the Company’s reasonable view, the number of shares of Company Common Stock proposed to be included in such offering (including Registrable Securities requested by Holders to be included in such offering and any securities that the Company or any other Person proposes to be included that are not Registrable Securities) exceeds the number of shares of Company Common Stock which can be sold in an orderly manner in such offering within a price range acceptable to the Holders of a majority of the Registrable Securities requested to be included in such registration (including any securities which Demand Registration, then the Company proposes shall so advise all Initiating Holders and Demand Eligible Holders with Registrable Securities proposed to be included which are not Registrable Securities) or (ii) in such underwritten offering, and shall include in such offering the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares of Company Common Stock which can be so sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
following order of priority: (A1) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration underwritten offering by any other Holder (allocatedthe Initiating Holders and the Demand Eligible Holders, if necessary for which in the offering not to exceed view of such underwriters or the Maximum Offering SizeCompany, as applicable, can be sold in an orderly manner within the price range of such offering, pro rata among such Initiating Holders and Demand Eligible Holders on the basis of the relative number of Registrable Securities so requested to be included therein by each such Initiating Holder and Demand Eligible Holder, and (2) second, Other Registrable Securities requested to be included in such registration); and
(B) second, any underwritten offering to the extent permitted hereunder pro rata among the respective holders of such Other Registrable Securities on the basis of the number of securities proposed requested to be registered included therein by the Companyeach such holder.
(fvi) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration The determination of whether any offering of Registrable Securities pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified Demand Registration will be an underwritten offering shall be made in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests sole discretion of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 Holders of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by Registrable Securities included in such underwritten offering, and such Holders of a majority of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on Registrable Securities shall have the Closing Date may request right to (A) determine the plan of distribution, including the price at which the Registrable Securities are to be sold and the underwriting commissions, discounts and fees, and (B) select the investment banker(s) and manager(s) to administer the offering (which shall consist of one (1) or more reputable nationally recognized investment banks, subject to the Company’s approval (which shall not be unreasonably withheld, conditioned or delayed)) and one (1) firm of counsel to represent all of the Holders (along with any reasonably necessary local counsel), in connection with such Demand Registration; provided, that the Company register Common Stock which are Registrable Securities then owned by shall select such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will investment banker(s), manager(s) and counsel (including local counsel) if such Holders of such majority cannot so agree on the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholderssame within a reasonable time period.
(hvii) If Any Holder whose Registrable Securities were to be included in any such registration requested pursuant to this Section 5.01 which is proposed 2(b) may elect to withdraw any or all of its Registrable Securities therefrom, without prejudice to the rights of any such Holder or Holders to include Registrable Securities in any future registration (or registrations), by written notice to the Company to be effected by the filing of a registration statement delivered on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance prior to the success effective date of such proposed offering, then such registration shall be effected on such other formthe relevant Demand Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (MPM Holdings Inc.)
Demand Registration. (a) If at any time following the earlier of (x) 180 days after the effective date of the registration statement for the First Public Offering and (y) the expiration of the period during which the managing underwriters for the First Public Offering shall prohibit the Company from effecting any other public sale or distribution of Company Securities, the Company shall receive a written joint request by from the CSH Shareholders Quadrangle Entities and the CVC Entities (any such requesting Person, a "Selling Shareholder"the “Requesting Shareholders”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request, a "“Demand Registration"”) at least 15 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ registration statement relating to such Demand Registration to the Management Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Shareholders have requested to register by the Selling Shareholdersregistration under this Section 5.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholders relates which that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Shareholders with rights to request registration under Section 5.02 (all such Shareholders, together with the Selling Requesting Shareholders, the "Holders"“Registering Shareholders”) has have requested the Company to register by written request received by the Company within 10 days (one of which shall be a 15 Business Day) Days after the receipt by such Holders of such written notice given by Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; , provided that, subject to Section 5.01(d) hereof), the Company shall not be obligated to effect more than five three Demand Registrations for the CSH Institutional Shareholders, other than Demand Registrations to be effected pursuant to a Registration Statement on Form S-3 (or any successor thereto), for which an unlimited number of Demand Registrations shall be permitted; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,00015,000,000. In no event will shall the Company be required to effect more than one Demand Registration hereunder within any foursix-month period.
(b) Promptly after the expiration of the 1015 Business Day-day period referred to in Section 5.01(a)(ii) hereof), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 5.01(e) such that less than 662/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Requesting Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Institutional Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders entities on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each); ,
(ii) second, all Registrable Securities requested to be included in such registration by any other Registering Shareholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Management Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each such Shareholder), and
(Biii) secondthird, any securities proposed to be registered by for the account of any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) Upon written notice to each Selling Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Requesting Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such the Company the preparation of which had then been commenced or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholders Agreement (Ntelos Holdings Corp)
Demand Registration. (a) If At any time after the Company shall receive Closing Date but not later than the date which is sixty (60) days after the Closing Date, not less than two Stockholders (the "Initiating Stockholders") may request in a written request by notice that Synetic file with the CSH Shareholders (any such requesting Person, SEC a "Selling Shareholder") that the Company effect the registration statement under the Securities Act of all (or a portion similar document pursuant to any other statute then in effect corresponding to the Securities Act), covering the registration of such Selling Shareholder's any or all Registrable Securities, up to and specifying including the intended method of disposition thereofMaximum Registrable Amount for each Initiating Stockholder, then the Company shall promptly give written notice of held by such requested registration Initiating Stockholders (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and first such Demand Registration being the ▇▇▇▇▇▇▇▇ Shareholders"First Demand Registration"), and thereupon will use its best efforts provided that there must be included in such registration at least the Minimum Registrable Number of shares of Registrable Securities. Following receipt of any notice under this Section 2.02(a), Synetic shall (i) within five (5) business days notify the other Stockholder of such request in writing, (ii) within thirty (30) days cause to effect, as expeditiously as possible, the registration be filed under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested a registration statement to register the resale of all Registrable Securities, up to and including the Maximum Registrable Amount for each such Stockholder, that the Initiating Stockholders and such other Stockholder, given such notice, have requested be registered and (iii) use its reasonable best efforts to cause the registration to be declared effective by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type SEC as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof soon as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodpossible.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to not less than one (1) year after the effective date of the registration statement relating to such registrationFirst Demand Registration, revoke such request, without liability to any of the other Holders, by providing Stockholder may request a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a second Demand Registration unless in the manner set forth in Section 2.02(a) above for the balance of such revocation arose out of Stockholder's then Registrable Securities (the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a "Second Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; "), provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to there must be included in such registration is interfered with by any stop order, injunction or other order or requirement of at least the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number Minimum Registrable Number of shares of Registrable Securities requested to and there shall not be included in such registration in excess of of the Maximum Registrable Amount. Following receipt of any notice under this Section 2.02(b), Synetic shall (including any securities which i) within five (5) business days notify the Company proposes to be included which are not Registrable Securitiesother Stockholder(s) or of such request in writing and (ii) within thirty (30) days cause to be filed under the inclusion Securities Act a registration statement to register the resale of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities that the Stockholders, given such notice, have requested be registered and (iii) uses its reasonable best efforts to cause the registration to be registered declared effective by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the CompanySEC as soon as possible.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Synetic Inc), Registration Rights Agreement (Synetic Inc)
Demand Registration. (a) If the Company shall receive receives from at least two-thirds of the Holders a written request by for registration of outstanding Registrable Securities with an anticipated aggregate offering price, net of Selling Expenses, of at least five million dollars ($5,000,000) (a “Demand Registration Request”), then the CSH Shareholders Company shall, subject to clauses 2.1(b) and 2.1(c) hereof, as soon as practicable, and in any event within ninety (any such requesting Person, a "Selling Shareholder"90) days following the date that the Company receives the Demand Registration Request, file a Registration Statement on Form S-3 (or if Form S-3 is not then available to the Company, on such form of registration statement that is then available to effect the registration of all of the Registrable Securities) providing for the registration and resale of all of the outstanding Registrable Securities specified in the Demand Registration Request (such filing, the “Resale Registration Statement”). The Registration Statement filed hereunder, to the extent allowable under the Securities Act and the rules promulgated thereunder, shall state that such Registration Statement also covers such indeterminate number of all Additional Shares of common stock of the Company as may become issuable to prevent dilution resulting from stock splits, stock dividends and similar transactions. If the Holders intend to distribute the Registrable Securities by means of an underwriting, the Demand Registration Request shall so state. The underwriter(s) shall be selected by the Holders, subject to approval by the Company. The Company shall cause the Resale Registration Statement to become or be declared effective by the SEC as promptly as practicable after the filing thereof. The Holders shall not be entitled to make more than three (3) Demand Registration Requests pursuant to this Schedule that are required to be registered on a portion form other than Form S-3 or its equivalent.
(b) If the Company furnishes to the Holders a certificate signed by the Chief Executive Officer or equivalent senior executive of such Selling Shareholder's Registrable Securitiesthe Company, and specifying stating that the intended method filing, effectiveness or continued use of disposition thereofthe Resale Registration Statement would require the Company to make an Adverse Disclosure, then the Company shall promptly give written notice have a period of not more than forty-five (45) days (or such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that longer period to which the request Holders holding a majority of the outstanding Registrable Securities consent in writing) within which to delay the filing or effectiveness of such Resale Registration Statement or, in the case of a Resale Registration Statement that has been declared effective, to suspend the use by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given Resale Registration Statement (in each case, a “Suspension”); provided, however, that, unless consented to in writing by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) Holders holding a majority of the outstanding Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereofSecurities, the Company shall not be obligated permitted to effect exercise a Suspension more than five Demand Registrations for twice during any 12-month period and there must be at least ninety (90) days between each permitted Suspension. In the CSH Shareholders; and provided further case of a Suspension that occurs after the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale effectiveness of the Common Stock requested Resale Registration Statement, the Holders agree to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration suspend use of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses applicable Prospectus in connection with any Demand Registration.
(d) A registration requested pursuant sale or purchase of, or offer to sell or purchase, Registrable Securities, upon the Company’s delivery of the certificate referred to in this Section 5.01 clause 2.1(b). The Company shall not be deemed to have been effected unless promptly notify the registration statement relating thereto Holders holding Registrable Securities covered by the Resale Registration Statement upon the termination of any Suspension, and (i) in the case the Resale Registration Statement has become not been filed or declared effective, shall promptly thereafter file the Resale Registration Statement, if applicable, and use its reasonable efforts to have such Resale Registration Statement declared effective under the Securities Act and (ii) all of in the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it case the Resale Registration Statement has become effective, shall amend or supplement the offering applicable Prospectus, if necessary, so it does not contain any untrue statement or omission prior to the expiration of the Suspension and furnish to the Holders holding Registrable Securities pursuant covered by the Resale Registration Statement such numbers of copies of any Prospectus as so amended or supplemented as such Holders may reasonably request. The Company agrees to supplement or make amendments to the Resale Registration Statement, if so required by the registration form used by the Company for the Resale Registration Statement or by the instructions applicable to such registration form or by the Securities Act or the rules or regulations promulgated thereunder or as may reasonably be requested by the Holders of a majority of the outstanding Registrable Securities covered by such Resale Registration Statement.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to clause 2.1(a) (i) during the period that is interfered with sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, an Company-initiated registration statement, provided, however, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective, or (ii) after the Company has effected three (3) registrations pursuant to clause 2.1(a) that are required to be registered on a form other than Form S-3 or its equivalent. A registration shall not be counted as “effected” for purposes of clause 2.1(c)(ii) until such time as the applicable Registration Statement has been declared effective by any stop orderthe SEC; provided, injunction or other order or requirement that, in the event that the Demand Registration Request is withdrawn by the Holders holding a majority of the outstanding Registrable Securities, and such Holders elect not to pay the registration expenses therefor, such withdrawn Registration Statement shall be counted as “effected” for purposes of clause 2.1(c)(ii), and the Holders shall be deemed to forfeit their right to one of the Registration Statements pursuant to clause 2.1(a).
(d) The Company shall use commercially reasonable efforts to take all actions necessary to ensure that the transactions contemplated herein are effected as contemplated in clause 2.1 hereof, and to submit to the SEC, within three (3) Business Days after the Company learns that no review of the Resale Registration Statement will be made by the staff of the SEC or other governmental agency that the staff has no further comments on such Resale Registration Statement, as the case may be, a request for acceleration of effectiveness (or court post-effective amendment, if applicable) of such registration will be deemed Resale Registration Statement to a time and date not to have been effectedlater than three (3) Business Days after the submission of such request.
(e) If Any reference herein to a Demand Registration involves an Underwritten Public Offering Statement or Prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a Registration Statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time. Any reference to a prospectus as of any time shall include any supplement thereto, preliminary prospectus, or any free writing prospectus in respect thereof.
(f) In connection with the managing underwriter shall advise filing of the Resale Registration Statement, subject to clauses 2.1(b) and 2.1(c), the Company shall:
(i) prepare and file with the Selling Shareholders thatSEC within the time periods specified in clause 2.1, a Registration Statement on Form S-3 that shall register all of the outstanding Registrable Securities required to be registered pursuant to clause 2.1(a) hereof for resale by the Holders thereof in its view, accordance with (except if otherwise required pursuant to written comments received from the SEC upon a review of such Resale Registration Statement) the “Plan of Distribution” section included in such Resale Registration Statement; and keep such Resale Registration Statement effective until the earlier of (i) the number date on which each Holder is able to dispose of shares all of its outstanding Registrable Securities requested registered under such Resale Registration Statement without restriction pursuant to be included in such registration Rule 144 (including or any securities which the Company proposes to be included which are not Registrable Securitiessuccessor rule) or and (ii) the inclusion date on which all Registrable Securities registered under such Resale Registration Statement have been sold (“Registration Period”), which Registration Statement shall not contain any untrue statement of some material fact or omit to state a material fact required to be stated therein, or necessary to make statements therein not misleading, and shall comply in all material respects with the Securities Act and the rules and regulations of the SEC promulgated thereunder. The financial statements of the Company included in such Registration Statement or incorporated therein by reference will comply in all material respects with all applicable accounting requirements and the published rules and regulations of the SEC applicable with respect thereto. Such financial statements will be prepared in accordance with U.S. generally accepted accounting principles, consistently applied, during the periods involved and fairly present in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended.
(ii) as soon as reasonably practicable prepare and file with the SEC such amendments and supplements to such Resale Registration Statement (including without limitation, any required post effective amendments) and the Prospectus included therein as may be necessary to effect and maintain the effectiveness of such Resale Registration Statement pursuant to clause 2.1(a) and clause 2.1(f)(i) for the period specified therein and as may be required by the applicable rules and regulations of the SEC and the instructions applicable to the form of such Resale Registration Statement;
(iii) comply with the provisions of the Securities Act with respect to the disposition of all of the shares of outstanding Registrable Securities owned covered by such Resale Registration Statement by the HoldersHolders provided for in such Resale Registration Statement;
(iv) make available to each Holder whose Registrable Securities are included in the Registration Statement and its legal counsel promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, and, in the case of the Registration Statements referred to in clause 2.1(a), each letter written by or on behalf of the Company to the SEC or the staff of the SEC (including, without limitation, any request to accelerate the effectiveness of the Registration Statement or amendment thereto), and each item of correspondence from the SEC or the staff of the SEC, in each case relating to the Registration Statement (other than any portion, if any, thereof which contains information for which the Company has sought confidential treatment).
(v) provide the Holders and, if any, single legal counsel designated by the Holders of a majority of the outstanding Registrable Securities covered by such caseResale Registration Statement (“Holder Counsel”) a reasonable opportunity to participate in the preparation of such Resale Registration Statement, exceeds each Prospectus included therein or filed with the largest number of shares which can be sold without having an adverse effect on such offeringSEC and each amendment or supplement thereto (but not including any documents incorporated by reference), including the price at in each case subject to customary confidentiality restrictions, and give reasonable consideration to any comments Holder Counsel provides with respect to any Resale Registration Statement or amendment or supplement thereto, and not file any document in a form to which such shares can be sold counsel reasonably objects. The Company shall furnish to Holder Counsel copies of any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Resale Registration Statement;
(vi) notify the "Maximum Offering Size"Holders requesting inclusion of any outstanding Registrable Securities in the Resale Registration Statement (A) when the Resale Registration Statement or any Prospectus included therein or any Prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Resale Registration Statement or any post-effective amendment, when the same has become effective, (B) of any comments by the SEC with respect thereto or any request by the SEC for amendments or supplements to such Resale Registration Statement or Prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of such Resale Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the outstanding Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose (in the cases of (C) and (D), the Company will include in shall obtain the withdrawal of such registrationstop order or suspension at the earliest practicable time) or (E) if at any time when a Prospectus is required to be delivered under the Securities Act, in the priority listed belowthat, up to the Maximum Offering Size:
(A) firstCompany’s knowledge, such Resale Registration Statement, Prospectus, Prospectus amendment or supplement or post-effective amendment does not conform in all Registrable material respects to the applicable requirements of the Securities requested Act and the rules and regulations of the SEC thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be registered by stated therein or necessary to make the parties requesting such Demand Registration and all Registrable Securities requested to be included statements therein not misleading in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis light of the relative circumstances then existing (in which case, the Company shall use its reasonable efforts to promptly prepare a supplement or amendment to the Resale Registration Statement to conform to such requirements or to correct such untrue statement or omission, and deliver such number of Registrable Securities so requested copies of such supplement or amendment to be included in such registrationthe selling Holders as the selling Holders may reasonably request); and
(Bvii) second, any securities proposed to be registered by in the Company.
(f) Upon written notice to each Selling Shareholderevent that Form S-3 is not available for the registration of the resale of outstanding Registrable Securities hereunder, the Company may postpone effecting a registration pursuant shall, subject to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewedclauses 2.1(b) and 2.1(c), if (1) an investment banking firm undertake to register the outstanding Registrable Securities on such form of recognized national standing Registration Statement that is then available to effect the registration of all of the Registrable Securities. The Company represents and warrants that, as of the date hereof, it meets the requirements for the use of Form S-3 for registration of the sale by the Holders of the Registrable Securities. The Company shall advise use its commercially reasonable efforts to file all reports required to be filed by the Company and with the Selling Shareholders SEC in writing that effecting a timely manner so as to thereafter maintain such eligibility for the registration would materially and adversely affect an offering use of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the CompanyForm S-3.
(g) After In connection with the Resale Registration Statement, each Holder agrees to furnish to the Company has effected one a duly completed selling stockholder questionnaire in customary form no later than ten (10) Business Days following the date of delivery of the Demand Registration by Request. Each Holder further agrees that it shall not be entitled to be named as a selling stockholder in the CSH Shareholders pursuant Resale Registration Statement or use the Prospectus for offers and resales of Registrable Securities at any time, unless such Holder has returned to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request Company a completed and signed selling stockholder questionnaire and has confirmed the accuracy of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority plan of distribution to be included in the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request Registration Statement. Each Holder acknowledges and agrees that the Company register Common Stock which are Registrable Securities then owned by information in the selling stockholder questionnaire and such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event plan of distribution will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed used by the Company in the preparation of the Resale Registration Statement and hereby consents to be effected by the filing inclusion of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be such information in connection with an Underwritten Public Offering, and if the managing underwriter shall advise Resale Registration Statement. Each Holder agrees to notify the Company as promptly as practicable of any inaccuracy or change in writing that, in its opinion, the use of another form of registration statement is of material importance information previously furnished by such Holder to the success Company contained in a selling stockholder questionnaire or of such proposed offering, then such registration shall be effected on such other form.the occurrence of any event in either case that could cause the Prospectus to contain an untrue statement of
Appears in 2 contracts
Sources: Subscription Agreement (Powin Corp), Shareholders' Agreement (Powin Corp)
Demand Registration. (a) If at any time following the earlier of (x) 180 days after the effective date of the registration statement for the IPO and (y) the expiration of the period during which the managing underwriters for the IPO shall prohibit the Company from effecting any other public sale or distribution of Company Securities, the Company shall receive a written request by from any of the CSH Shareholders Preferred Stockholders or BSC (any such requesting Person, a "Selling Shareholder"the “Requesting Stockholder”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, and specifying which notice shall specify the intended method or methods of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least 15 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, other Stockholders and thereupon will shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Stockholders have requested to register by the Selling Shareholdersregistration under this Section 4.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Section 4.01(e) and Section 4.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholders that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Stockholders with rights to request registration under this Section 4.01 (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholders, and any Stockholders participating in a Piggyback Registration pursuant to Section 4.02, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days (one of which shall be a 15 Business Day) Days after the receipt by such Holders of such written notice given by Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; , provided that, subject to Section 5.01(d) hereof4.01(d), the Company shall not be obligated to effect more than five one (1) Demand Registrations for the CSH Shareholders; any Preferred Stockholder or BSC, other than Demand Registration to be effected pursuant to a Registration Statement on Form S-3 (or any successor thereto), for which an unlimited number of Demand Registrations shall be permitted, and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,00040,000,000. In no event will shall the Company be required to effect more than one Demand Registration hereunder within any foursix-month period.
(b) Promptly after the expiration of the 1015-day Business Day-period referred to in Section 5.01(a)(ii) hereof4.01(a)(ii), the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other HoldersRegistering Stockholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 calendar days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 4.01(e) such that less than 66 2⁄3% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration Preferred Stockholders and all Registrable Securities requested to be included in such registration by any other Holder BSC (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders entities on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each); ,
(ii) second, all Registrable Securities requested to be included in such registration by any other Registering Stockholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Stockholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each such Stockholder), and
(Biii) secondthird, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Stockholders Agreement (TriVascular Technologies, Inc.), Stockholders Agreement (TriVascular Technologies, Inc.)
Demand Registration. (a) If the Company shall receive a written request be requested by the CSH Shareholders Investors holding at least 20% of the total number of outstanding Restricted Shares (any such requesting Person, assuming conversion of all Debentures) to effect a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereofRestricted Shares in accordance with this Section, then the Company shall promptly give written notice of such proposed registration to all holders of Restricted Shares and shall offer to include in such proposed registration any Restricted Shares requested to be included in such proposed registration (a "Demand Registration") by such holders who respond in writing to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, Company's notice within 15 days after delivery of such notice (which response shall specify the ▇▇▇▇▇ Shareholders number of Restricted Shares proposed to be included in such registration and the ▇▇▇▇▇▇▇▇ Shareholdersintended method of distribution, and thereupon will which may be pursuant to a shelf registration). The Company shall promptly use its best efforts to effecteffect such registration on an appropriate form, as expeditiously as possibleincluding Form S-2, the registration if available, under the Securities Act of:
(i) of the Registrable Securities Restricted Shares which the Company has been so requested to register by the Selling Shareholdersregister; provided, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder-------- however, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless any registration ------- under the aggregate proceeds expected Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to file more than three registration statements in total pursuant to this Section, subject to paragraph (c) below;
(ii) the Company shall not be obligated to file any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be received from or were sold has been filed and not withdrawn or has been declared effective within the sale prior 90 days or (B) the Company has determined in good faith that the filing of a registration statement would require the Common Stock requested disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, such filing to be delayed until the date which is 90 days after such request for registration pursuant to this Section 4(a); provided that the Company may only so delay the filing or -------- effectiveness of a registration statement pursuant to this Section 5(a)(ii)(B) on one occasion during any twelve month period;
(iii) with respect to the registration pursuant to this Section, the Company may include in such registration any Primary Shares or Other Shares; provided, however, that if the managing -------- ------- underwriter advises the Company in writing that the inclusion of all Restricted Shares, Primary Shares and Other Shares proposed to be included in such Demand Registrationregistration would interfere with the successful marketing (including pricing) of all such securities, then the number of Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the reasonable opinion following order:
(A) First, the Restricted Shares held by all ----- Investors, pro rata based upon the number of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will Restricted Shares owned by each such Investor at the Company be required to effect more than one Demand Registration within any four-month period.time of such registration;
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders Investors requesting a registration under pursuant to this Section 5.01(a) may, at in the notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such Investors shall select one or more nationally recognized firms of investment banks to act as the managing underwriters and shall select any time prior additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the effective date of the Company. The Company shall, together with all Investors proposing to sell Restricted Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration statement relating to such registration, revoke such request, without liability to any of the other Holders, under this Section may be rescinded by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered by the Investors holding a Demand Registration unless such revocation arose out majority of the fault Restricted Shares to be included in such registration under the following circumstances:
(A) If such registration statement is rescinded prior to the filing date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above;
(B) If such registration statement is rescinded after the Company or unless filing date but prior to its effective date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above if the participating Shareholders reimburse Investors (x) have reimbursed the Company for all costs out-of-pocket expenses incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.rescinded registration or (y)
(c1) The reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company will pay all Registration Expenses in connection with any Demand Registration.of such fact and requested that the Company correct such alleged misstatement or omission and (3) the Company has refused to correct such alleged misstatement or omission; and
(dC) A registration requested shall not count as a registration statement initiated pursuant to this Section 5.01 shall not be deemed for purposes of paragraph (a) above unless it becomes effective and the participating Investors are able to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all sell at least 80% of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested Restricted Shares sought to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Companystatement.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Boss Investment LLC), Investors' Rights Agreement (Building One Services Corp)
Demand Registration. (ai) If Following the expiration of the Lock-Up Period, any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $50 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice (the “Minimum Amount”).
(ii) Within five Business Days of the receipt of the Demand Notice, the Company shall receive a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration Demand Notice to all Holders and, within thirty days thereof (a "Demand Registration") except if the Company is not then eligible to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) register for resale the Registrable Securities on Form S-3, in which the Company has been so requested to register by the Selling Shareholderscase, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholderwithin ninety days thereof), any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholdersshall, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all subject to the extent necessary to permit the disposition (limitations of this Section 2(a), file a Registration Statement in accordance with the intended methods thereof as aforesaid) terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities so that the Holders shall in writing request (such request to be registered; provided that, subject given to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five within ten days of receipt of notice of the Demand Registrations for the CSH Shareholders; and provided further that Notice given by the Company shall not be obligated pursuant to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(bthis Section 2(a)(ii)) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration. The Company shall use reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days of the closing of any Underwritten Offering, (B) more than a total of three Demand Registrations pursuant to this Agreement, and (C) more than one Demand Registration for any Holder in any 365-day period. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for the period required pursuant to Section 2(a)(ii), in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(iv) An Initiating Holder and any other Holders and the number of Holder that has requested its Registrable Securities requested to be included therein. The Selling Shareholders requesting in a registration under Section 5.01(a) may, Demand Registration may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effective date effectiveness of the registration statement relating applicable Registration Statement. Upon delivery of a notice by the Initiating Holder to the effect that the Initiating Holder is withdrawing all or an amount such registrationthat the remaining amount is below the Minimum Amount of its Registrable Securities to be included in a Demand Registration, revoke such request, without liability the Company shall cease all efforts to any secure effectiveness of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, applicable Registration Statement. Such registration shall be considered deemed a Demand Registration unless such revocation arose out of (i) the fault of the Company Initiating Holder shall have paid or unless the participating Shareholders reimburse reimbursed the Company for its pro rata share of all costs reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) based on the number of shares securities the Initiating Holder sought to register, as compared to the total number of Registrable Securities requested to be securities included in such registration (including any securities which the Company proposes to be included which are not Registrable SecuritiesDemand Registration) or (ii) the inclusion withdrawal is made (A) following the occurrence of some a Material Adverse Change or all (B) because the Registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential.
(v) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the shares Commission (x) as shall be selected by the Company and (y) as shall permit the disposition of the Registrable Securities owned by in accordance with the intended method or methods of disposition specified in the applicable Holders’ requests for such registration. If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vi) Without limiting Section 3, in connection with any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"Demand Registration pursuant to and in accordance with this Section 2(a), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
shall (A) firstpromptly prepare and file or cause to be prepared and filed (1) such additional forms, all amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities requested subject to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
Trading Market and (B) second, do any securities proposed to and all other acts and things that may be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended reasonably necessary or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced appropriate or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations reasonably requested by the CSH Shareholders shall apply, mutatis mutandis, Holders to any such Demand Registration by enable the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant Holders to this Section 5.01 which is proposed by the Company to be effected by the filing of consummate a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success public sale of such proposed offering, then such registration shall be effected on such other formRegistrable Securities in accordance with the intended timing and method or methods of distribution thereof.
Appears in 2 contracts
Sources: Agreement of Limited Partnership (Rice Energy Inc.), Limited Liability Company Agreement (Rice Energy Inc.)
Demand Registration. (a) If the Company shall receive a written request by from the CSH Shareholders DLJMB Members (any such requesting Personperson, a "Selling Shareholder"the “Requesting Stockholder”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least fifteen (15) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, other Stockholders and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Stockholders have requested to register by the Selling Shareholdersregistration under this Section 1.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholders that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Stockholders with rights to request registration under Section 1.02 (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholders, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days ten (one of which shall be a 10) Business Day) Days after the receipt by such Holders of such written notice given by Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d1.01(d) hereof, the Company shall not be obligated to effect (x) more than five six Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds Registration are at least (A) $7,500,000. In no event will the Company be required to effect more than one 50 million if such Demand Registration within would constitute the Initial Public Offering, or (B) $20 million in any four-month periodDemand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10-day ) Business Day period referred to in Section 5.01(a)(ii1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other HoldersRegistering Stockholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any each Demand Registration, regardless of whether such Registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholders that, in its view, (i) the number of shares of Registrable Company Securities requested that the Registering Stockholders and the Company propose to be included include in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Members on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each); and
(Bii) second, any securities all Registrable Securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings LLC)
Demand Registration. (a) If If, at any time following one hundred and eighty (180) days after the effective date of the registration statement for a Public Offering, the Company shall receive a written request by from the CSH Shareholders Designated Holders holding at least five percent (any such requesting Person, a "Selling 5%) Registrable Securities then outstanding (the “Requesting Shareholder"”) that the Company effect the registration of the Registrable Securities under the Securities Act of all such Requesting Shareholder’s Registrable Securities where the anticipated gross proceeds (before the deduction of any discounts or a portion of such Selling Shareholder's Registrable Securities, and specifying commissions) would be at least US$200 million (the intended method of disposition thereof“Demand Threshold”), then the Company shall promptly give written notice of such requested registration (each such request, a "“Demand Registration"”) to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Shareholder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholdersregistration under this Section 1; and
(ii) subject to the restrictions set forth in Sections 1(e) and 2, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholder that any Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder with rights to request registration under this Section 1 (all such Shareholders, together with the Selling Requesting Shareholders, and any Shareholders participating in a Piggyback Registration pursuant to Section 2, the "Holders"“Registering Shareholders”) has have requested the Company to register by written request received by the Company within 10 days five (one of which shall be a 5) Business Day) Days after the receipt by such Holders of such written notice given by Shareholders receive the Company, ’s notice of the Demand Registration; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof1(d), the Company shall not be obligated to effect more than five three (3) Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a such Requesting Shareholder, other than Demand Registration unless the aggregate proceeds expected to be received from the sale effected pursuant to a Registration Statement on Form F-3, for which an unlimited number of the Common Stock requested to Demand Registrations (including Shelf Offerings) shall be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000permitted. In no event will shall the Company be required to effect more than one Demand Registration hereunder within any four-six- (6-) month period., provided that this restriction shall not apply to the filing of a Shelf Registration Statement and a Shelf Offering off such Shelf Registration Statement. Annex A-1
(b) Promptly after the expiration of the 10-day five- (5-) Business Day period referred to in Section 5.01(a)(ii) hereof1(a)(ii), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Investor Rights Agreement (KE Holdings Inc.), Investor Rights Agreement (KE Holdings Inc.)
Demand Registration. (ai) At any time after the expiration of the applicable Lock-Up Period, any Preferred Holder and Sponsoring Holder shall severally have the option and right, exercisable by delivering a written notice to the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of at least $75 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice; provided, however, that the Minimum Amount shall not apply in the event that, as the result of Cutback Shares being removed from such Registration Statement pursuant to this Section 2(a)(i), the Registrable Securities of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of less than $75 million. If at any time the Commission takes the position that some or all of the Registrable Securities proposed to be included in a Registration Statement filed pursuant to a Demand Registration must be removed from such Registration Statement (such portion of the Registrable Securities, the “Cut Back Shares”) in order for all of the Registrable Securities in such Registration Statement filed pursuant to a Demand Registration to be eligible to be made on a delayed or continuous basis under the provisions of Rule 415 or for the Initiating Holder to not be named as an “underwriter” in such Registration Statement, then if the Initiating Holder so elects, the Company shall receive remove the Cutback Shares from such Registration Statement. Any Cut Back Shares so removed pursuant to this Section 2(a)(i) shall be allocated among the Holders including Registrable Securities for resale on such Registration Statement on a written request by the CSH Shareholders (any such requesting Personpro rata basis. Further, a "Selling Shareholder"Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of Section 2(a)(iii) that if, as a result of the Company effect cutback provisions in this Section 2(a)(i) or Registrable Securities of Holders other than the registration under Initiating Holder included in such Demand Registration pursuant to Section 2(a)(ii), there is included in the Demand Registration less than the lesser of (x) Registrable Securities Act of all the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $75 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(ii) Within five Business Days (or if the Registration Statement will be a portion Shelf Registration Statement, within two Business Days) after the receipt of such Selling Shareholder's Registrable Securitiesthe Demand Notice, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (a "Demand Registration") except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholderslimitations of this Section 2(a), file a Registration Statement in accordance with the ▇▇▇▇▇ Shareholders terms and conditions of the ▇▇▇▇▇▇▇▇ ShareholdersDemand Notice, and thereupon which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use its reasonable best efforts to effectcause such Registration Statement to become and remain effective (including using reasonable best efforts to file a Registration Statement including Registrable Securities included on any previous Registration Statement that ceases to be effective, as expeditiously as possiblewhich, for the registration avoidance of doubt shall not be considered an additional Demand Registration for any Holder pursuant to Section 2(a)(iii)) under the Securities Act of:until all such securities registered for resale thereunder cease to be Registrable Securities (the “Effectiveness Period”).
(iiii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering (or such shorter time as the Company may notify the Holders in writing) (any such time period, a “No Demand Period”), unless any Preferred No-Blocking Period exists during such No Demand Period, in which case the Company shall nevertheless be required to effect a Demand Registration initiated by any Preferred Holder that is then otherwise entitled to initiate a Demand Registration during such Preferred No-Blocking Period, (B) more than a total of four Demand Registrations for which WildHorse Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of four Demand Registrations for which Esquisto Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than a total of four Demand Registrations for which Acquisition Co. Holdings (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (E) more than a total of six Demand Registrations for which any Preferred Holder is the Initiating Holder; and (F) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities of on the same type as that to which terms and conditions specified in the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Securities such that the remaining amount of Registrable Securities to be included in the Demand Registration is below the Minimum Amount, the Company may cease all efforts to secure effectiveness of the applicable Registration Statement, unless one or more Holders other than the withdrawing Holder(s) shall promptly request the Company in writing to include additional Registrable Securities in the Demand Registration such that amount of Registrable Shares to be included in the Demand Registration satisfies the Minimum Amount (a “Requisite Holder Substitution”). In the absence of a Requisite Holder Substitution, such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as aforesaidcompared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) subject to applicable law and the requirements of the Commission, as shall permit the disposition of the Registrable Securities so to be registeredin accordance with the intended method or methods of disposition specified in the Demand Notice; provided that, subject to Section 5.01(d3(o), (X) hereofif the Registration Statement is on Form S-1, the Company shall not maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission (provided that Form S-1 is then available for sales on a delayed or continuous basis under the provisions of Rule 415 in respect of such Demand Registration), and (Y) if the Company becomes, and is at the time of its receipt of a Demand Notice eligible to use Form S-3, the Demand Registration for any offering and selling of Registrable Securities shall be obligated registered on Form S-3 (or any equivalent or successor form under the Securities Act (if available to the Company) and (Z) if at the time of its receipt of a Demand Notice, the Company is a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be registered on an Automatic Shelf Registration Statement on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect more than five an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registrations for the CSH Shareholders; Registration pursuant to and provided further that in accordance with this Section 2(a), the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected (A) promptly prepare and file or cause to be received from prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the sale of the Common Stock requested securities subject to be included in such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the reasonable opinion Company would become subject to general service of CSH exercised process or to taxation or qualification to do business in good faithsuch jurisdiction solely as a result of registration and (2) such forms, equals amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or exceeds $7,500,000. to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event will shall the Company be required to effect more file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than one Demand Registration within any four-month periodthe Holder, Affiliates of the Holder or transferees of the Holder.
(bix) Promptly after Notwithstanding the expiration foregoing restrictions of the 10-day period referred this Section 2(a), but subject to in Section 5.01(a)(ii) hereofany applicable No Demand Periods, the Company will notify all the Preferred Holders shall be permitted to be included in the deliver a Demand Notice for a Demand Registration of during the other Holders and Lock-Up Period so long as (A) the number Company is then-eligible to use Form S-3 to register the resale of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (iiB) all the Preferred Holders do not dispose of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of any Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement the applicable Registration Statement for the duration of the SEC or other governmental agency or court such registration will be deemed Lock-Up Period. Further, and for the avoidance of doubt, nothing in this Agreement shall prohibit a Preferred Holder from exercising its rights as a Holder during the Lock-Up Period, including, but not to have been effected.
(e) If limited to, a Preferred Holder’s participation in a Demand Registration involves Registration, Underwritten Offering and/or Underwritten Piggyback Offering, other than with respect to (Y) except as provided in the immediately preceding sentence, delivering a Demand Notice as an Underwritten Public Offering Initiating Holder during its Lock-Up Period pursuant to Section 2(a)(i) and the managing underwriter shall advise the Company and the Selling Shareholders that, in (Z) exercising its view, (i) the number of shares of Registrable Securities requested right to be included in such registration (including any securities which the Company proposes receive a Piggyback Notice or to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, participate in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up Piggyback Registration during its Lock-Up Period with respect to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form for the sale of securities solely for the account of the Company, which registration statement) shall be in connection with an Underwritten Public Offering, and if for the managing underwriter shall advise the Company in writing thatavoidance of doubt, in its opinion, the use does not include Registrable Securities of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formany Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (WildHorse Resource Development Corp), Stock Issuance Agreement (WildHorse Resource Development Corp)
Demand Registration. (a) If the Company shall receive a written request by from the CSH Shareholders DLJMB Members (any such requesting Personperson, a "Selling Shareholder"the “Requesting Stockholder”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least fifteen (15) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, other Stockholders and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Stockholders have requested to register by the Selling Shareholdersregistration under this Section 1.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholders that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Stockholders with rights to request registration under Section 1.02 (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholders, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days ten (one of which shall be a 10) Business Day) Days after the receipt by such Holders of such written notice given by Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d1.01(d) hereof, the Company shall not be obligated to effect (x) more than five six Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds Registration are at least (A) $7,500,000. In no event will the Company be required to effect more than one 50 million if such Demand Registration within would constitute the Initial Public Offering, or (B) $20 million in any four-month periodDemand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10-day ) Business Day period referred to in Section 5.01(a)(ii1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other HoldersRegistering Stockholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any each Demand Registration, regardless of whether such Registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholders that, in its view, (i) the number of shares of Registrable Company Securities requested that the Registering Stockholders and the Company propose to be included include in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Stockholders on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each); and
(Bii) second, any securities all Registrable Securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings, Inc.)
Demand Registration. (a) If At any time following the Company shall receive Closing Date and as many times as may be required for the disposition of all Registrable Securities, the Initiating Holders may give a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that to the Company to effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Holder’s Registrable Securities, which written request shall specify the number of Registrable Securities to be registered and specifying the intended method of disposition thereofthereof (each such registration shall be referred to herein as a “Demand Registration”); provided that, then subject to Section 2.1(d), the Company shall promptly not be obligated to effect any Demand Registration (w) with respect to Registrable Securities that are subject to transfer restrictions (other than those pursuant to the Securities Act or applicable state or other securities laws) pursuant to this Agreement or the ModSpace Warrant Agreement, as applicable, (x) within 90 days after the effective date of a previous Registration Statement (or such shorter period as the Company may determine in its sole discretion) pursuant to which the Holders were permitted to register the offer and sale under the Securities Act, and actually sold at least 75% of the Registrable Securities requested to be included therein by such Holders or (y) as provided in Section 2.1(f). Thereafter, the Company shall promptly, and in any event, within five (5) days after receiving such request, give written notice of such requested the proposed registration (a "Demand Registration") to all other Holders and all Existing Investors, which Existing Investors shall have piggyback rights with respect thereto pursuant to Section 2.3 of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ ShareholdersExisting Agreement, and thereupon will use its best reasonable efforts to effect, as expeditiously soon as possiblepracticable, the registration under the Securities Act of:
(i) the first, all Registrable Securities for which the Company requesting Initiating Holder(s) has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; anda Demand Registration under this Section 2.1;
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholderssecond, the "Holders") has number of Existing Investor Securities requested the Company to register by any Existing Investor specified in a written request received by the Company within 10 five (5) days after written notice regarding such Existing Investor’s piggyback rights with respect to such Demand Registration pursuant to Section 2.3 of the Existing Agreement to be included in such Demand Registration by any such Existing Investor equal to the difference between the Maximum Offering Size and number of Registrable Securities requested to be included in such Demand Registration pursuant to clause (one i) above, based on the pro rata percentage of which shall be a Business Day) after the receipt Exisiting Investor Securities held by such Holders Existing Investors (determined based on the aggregate number of Existing Investor Securities held by each such Existing Investor);
(iii) third, the number of Registrable Securities requested by any other Holder specified in a written request received by the Company within five (5) days after written notice given regarding such other Holder’s piggyback rights with respect to such Demand Registration pursuant to Section 2.3 of this Agreement to be included in such Demand Registration by such other Holders equal to the difference between the Maximum Offering Size and the number of Registrable Securities and Existing Investor Securities requested pursuant to clauses (i) and
(ii) above, based on the pro rata percentage of Registrable Securities held by such other Holders (determined based on the aggregate number of Registrable Securities held by each such other Holder); and
(iv) fourth, any Common Stock to be offered or sold by the Company, all ; to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be so registered; provided that, subject to Section 5.01(d) hereof, . At any time the Company shall not be obligated to effect more than five Demand Registrations is eligible for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand use of an Automatic Shelf Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included Statement, if specified in such notice for a Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodsuch registration shall occur on such form.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement Registration Statement relating to such registrationDemand Registration, revoke such requestany requesting Holder may, without liability to any of the other Holders, by providing a written upon notice to the Company revoking Company, revoke its request in whole or in part with respect to the number of shares of Registrable Securities requested by such request, requesting Holder to be included in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand RegistrationStatement.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement Registration Statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained continuously effective for a period of at least (x) 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Holders included in such registration have actually been soldsold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided that such Registration Statement shall not be considered a Demand Registration if, within 180 days after it has become such Registration Statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 66.67% of the Registrable Securities of the Holders sought to be included in such registration will be deemed not to have been effectedare included.
(e) The Company shall not include in any Demand Registration or Shelf Registration any securities that are not Registrable Securities or Existing Investor Securities without the prior written consent of the Holders of the Registrable Securities included in such Demand Registration or Shelf Registration. If a Demand Registration involves an Underwritten a Public Offering and the lead managing underwriter shall advise advises the Company and the Selling Shareholders Holders of the Registrable Securities included in such Demand Registration that, in its view, (i) the number of shares of Registrable Securities and Existing Investor Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an a material and adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by and Existing Investor Securities in the parties requesting such Demand Registration and all Registrable Securities requested to be included order of priority described in Sections 2.1(a)(i)-(iii), above. The lead managing underwriter or underwriters selected for such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to shall be included selected in such registrationaccordance with Section 2.5(f); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the The Company may postpone effecting for up to 60 days (i) the filing or effectiveness of a registration Registration Statement for a Demand Registration or Shelf Registration (except the Shelf Registration pursuant to this Section 5.01 on 2.2(a)(I)) or (ii) the commencement of a Shelf Public Offering if the Board of Directors of the Company determines in its reasonable good faith judgment that such Demand Registration, Shelf Registration or Shelf Public Offering, as applicable, (i) materially interferes with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) requires premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) renders the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the Initiating Holders shall be entitled to withdraw their request therefor and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one occasion during of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration, Shelf Registration or Shelf Public Offering hereunder only twice in any period of six twelve (12) consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Companymonths.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (WillScot Corp)
Demand Registration. (ai) If the Company shall receive at any time after the end of the Effectiveness Period for the Shelf Registration, a written request by from the CSH Shareholders Investors of at least thirty-three percent (any such requesting Person, a "Selling Shareholder"33%) of the Demand Securities then outstanding that the Company effect the file a registration statement under the Securities Act covering the registration of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereofDemand Securities pursuant to this Section 2(b), then the Company shall promptly shall, within ten (10) business days of the receipt of such written request, give written notice of such requested registration request (a "Demand RegistrationRequest Notice") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholdersall Investors, and thereupon will file within thirty (30) days and use its best efforts to effect, as expeditiously as possiblecause such Registration Statement to become effective within an additional thirty (30) days, the registration under the Securities Act of:
(i) the Registrable Registration Statement covering all Demand Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the Investors request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder written notice given such Investors to the Company within twenty (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis 20) days after receipt of the relative number of Request Notice; provided that the Registrable Securities so requested by all Investors to be registered pursuant to such request must be at least thirty-three percent (33%) of all Demand Securities then outstanding; provided further, that in the event the proposed offering described in the Request Notice is an Underwritten Offering, then additional Holdover Securities (other than Warrants and Series A Preferred) held by Investors may be included in such registration); and
the registration described in the Request Notice, subject to compliance with subsection (Bii) second, any securities proposed to be registered by the Companybelow.
(fii) Upon written notice If the Investors initiating the registration request under this Section 2(b) ("Initiating Investors") intend to each Selling Shareholderdistribute the Demand Securities covered by their request by means of an Underwritten Offering, then they shall so advise the Company may postpone effecting as a registration part of their request made pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified 2(b) and the Company shall include such information in the notice but not exceeding 90 days Request Notice referred to in subsection (which period may not i) of this Section 2(b). In such event, the right of any Investor to include his Demand Securities and, if applicable, Holdover Securities in such registration shall be extended conditioned upon such Investor's participation in such Underwritten Offering and the inclusion of such Investor's Demand Securities in the Underwritten Offering (unless otherwise mutually agreed by a majority in interest of the Initiating Investors and such Investor) to the extent provided herein. All Investors proposing to distribute their securities through such Underwritten Offering shall enter into an underwriting agreement in customary form with the managing underwriter or renewedunderwriters selected for such Underwritten Offering by the Company. Notwithstanding any other provision of this Section 2(b), if (1the underwriter(s) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2advise(s) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing thatthat marketing factors require a limitation of the number of securities to be underwritten then the Company shall so advise all Investors owning Demand Securities and, if applicable, Holdover Securities, which would otherwise be registered and underwritten pursuant hereto, and the number of Demand Securities and, if applicable, Holdover Securities, that may be included in its opinionthe Underwritten Offering shall be reduced as required by the underwriter(s) and allocated among the Investors owning Demand Securities and, the use of another form of registration statement is of material importance if applicable, Holdover Securities, on a pro rata basis according to the success number of such proposed offeringDemand Securities and, if applicable, Holdover Securities, then such outstanding held by each Investor requesting registration shall be effected on such other form(including the Initiating Investors).
Appears in 2 contracts
Sources: Registration Rights Agreement (Avnet Inc), Registration Rights Agreement (Sci Systems Inc)
Demand Registration. (a) If Subject to the restrictions set forth herein, if at any time the Company shall receive receives a written request by from the CSH Shareholders DCP Investor or, after the Golden Gate Demand Eligibility, the Golden Gate Investor (any such requesting Personas such, a "Selling and as applicable, the “Requesting Shareholder"”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling the Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereofthereof (each such request shall be referred to herein as a “Demand Registration”), then then, within five Business Days, the Company shall promptly give written notice of such requested registration (a "Demand Registration") Registration to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Shareholders have requested to register by the Selling Shareholdersregistration under this Section 5.1, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling any other Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Requesting Shareholders, the "Holders"“Registering Shareholders”) has have requested that the Company to register by written request received by the Company within 10 days (one of which shall be a five Business Day) after the receipt by such Holders Days of such written notice given by Shareholders receipt of the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) ’s notice of the Registrable Securities so Demand Registration (which request to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not specify the number of Registrable Securities requested to be obligated registered by such Shareholders); provided that no Person may participate in any registration statement pursuant to effect more than five Demand Registrations for this Section 5.1(a) unless such Person agrees to sell their Registrable Securities to the CSH underwriters selected as provided in Section 5.5(f) on the same terms and conditions as apply to the Requesting Shareholders; and provided further provided, further, that the Company shall not be obligated to effect a (a) more than five Demand Registrations by the DCP Investor, (b) more than two Demand Registrations by the Golden Gate Investor and not until after the Golden Gate Demand Eligibility, (c) any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included by all Registering Shareholders in such Demand Registration, Registration are at least $50 million (unless such Registrable Securities identified in the reasonable opinion of CSH exercised in good faithDemand Registration constitute all remaining Registrable Securities held by the Requesting Shareholder), equals or exceeds $7,500,000. In no event will the Company be required to effect (d) more than one Demand Registration within during any foursix-month period.
(b) Notwithstanding the foregoing, the Company may delay the filing of a registration statement, or suspend the continued use of a registration statement, required by Section 5.1 (i) for a period up to 90 days after the request to file a registration statement if at the time the Company receives the request to register Registrable Securities, the Company or any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the Board determines in good faith, after consultation with external legal counsel, that such disclosure would have a material adverse effect on the Company or its business or on the Company’s ability to effect a proposed material acquisition, disposition, financing, reorganization, recapitalization or similar transaction and (ii) for a period of time required by an underwriting agreement relating to a Public Offering of newly issued shares by the Company; provided that such period of time shall not exceed 90 days from the date of such underwriting agreement. A deferral of the filing of a registration statement, or the suspension of the continued use of a registration statement, pursuant to this Section 5.1(b), shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case of a deferral, the negotiations or other activities are disclosed or terminated. In order to defer the filing of a registration statement, or suspend the continued use of a registration statement, pursuant to this Section 5.1(b), the Company shall promptly (but in any event within five days), upon determining to seek such deferral or suspension, deliver to the Requesting Shareholder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing, or suspending the continued use of a registration statement, pursuant to this Section 5.1(b) and a general statement of the reason for such deferral or suspension, as the case may be, and an approximation of the anticipated delay. The Company may defer the filing, or suspend the continued use of, a particular registration statement pursuant to this Section 5.1(b) no more than twice and for no more than 120 days in the aggregate in any twelve-month period; provided that there must be an interim period of at least 60 days between the end of one deferral or suspension period and the beginning of a subsequent deferral or suspension period. The Company agrees, that in the event it exercises its rights under this Section 5.1(b), it shall, within seven days following receipt by the holders of Registrable Securities of the notice of deferral or suspension, as the case may be, update the deferred or suspended registration statement as may be necessary to permit the holders of Registrable Securities to resume use thereof in connection with the offer and sale of their Registrable Securities in accordance with applicable law.
(c) Promptly after the expiration of the 10-day five Business Day period referred to in Section 5.01(a)(ii) hereof5.1(a)(ii), the Company will notify in writing all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registrationDemand Registration, the Requesting Shareholders may revoke in writing such request, without liability to any of the other HoldersRegistering Shareholder, by providing a written notice to the Company revoking such request; provided, in which case however, that no such request, so revoked, withdrawn demand request shall be considered deemed to have been a Demand Registration unless if (i) such revocation arose out of demand request is withdrawn prior to the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred filing by the Company of a registration statement pursuant thereto, or (ii) such withdrawal is due to the disclosure of material adverse information relating specifically to the Company that was not known by the Requesting Shareholder at the time it submitted its demand request, provided, that, in connection either event, the Requesting Shareholder elects to bear all expenses associated with such registration, in which case such withdrawn demand request shall not be considered a Demand Registrationand the registration statement pursuant thereto.
(cd) The Except as expressly set forth herein, the Company will shall be liable for and pay all Registration Expenses in connection with any each Demand Registration, regardless of whether such Registration is effected. Notwithstanding the foregoing sentence, the Registering Shareholders of such Registrable Securities shall be responsible for any brokerage or underwriting commissions and taxes of any kind (including, without limitation, transfer taxes) with respect to any disposition, sale or transfer of Registrable Securities.
(de) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred unless the registration statement relating thereto (iA) has become effective under the Securities Act Act, and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been soldsold thereunder); provided provided, that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court court, and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or if the Maximum Offering Size is reduced in accordance with Section 5.1(f) such that less than 75% of the Registrable Securities of the Requesting Shareholder sought to be included in such registration are included.
(ef) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Shareholder that, in its view, (i) the number of shares of Registrable Securities requested that the Registering Shareholders and the Company (if any) propose to be included include in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting Registering Shareholders (such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders the Requesting Shareholder and the other holders of Registrable Securities on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each, unless the managing underwriter reasonably determines otherwise, in which case the allocation of such Registrable Securities shall be in the manner reasonably determined by the managing underwriter); and
(Bii) second, any securities all Registrable Securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Shareholder Agreement (Reliant Software, Inc.), Shareholder Agreement (Community Choice Financial Inc.)
Demand Registration. (a) If At any time after the date that is 180 days after the date hereof (or such earlier date as would permit the Company to cause any Filings required hereunder to be filed on the 180th day after the date hereof), any Person that is a Stockholder (a “Requesting Stockholder”) on the date a Demand is made shall receive be entitled to make a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that of the Company effect the (a “Demand”) for registration under the Securities Act of all a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount (a portion of such Selling Shareholder's Registrable Securities, “Demand Registration”) and specifying the intended method of disposition thereof, then thereupon the Company shall promptly give written notice of such requested registration (a "Demand Registration") will, subject to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersterms of this Agreement, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best commercially reasonable efforts to effect, as expeditiously as possible, effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling ShareholdersRequesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, then held by the Selling Shareholders; andwhich may be an Underwritten Offering;
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates Company has been requested to register pursuant to Section 4.01(b); and
(iii) all shares of Common Stock which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company may elect to register by written request received by the Company within 10 days (one in connection with any offering of which shall be a Business Day) after the receipt by such Holders of such written notice given by the CompanyRegistrable Securities pursuant to this Section 4.01, but subject to Section 4.01(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidthereof) of the Registrable Securities so and the additional Common Stock, if any, to be so registered; provided that.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, subject (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company shall give written notice of such Demand to any other Persons that on the date a Demand is delivered to the Company is a Stockholder (excluding Permitted Transferees which have not signed a joinder as contemplated by Section 2.01). Subject to Section 5.01(d) hereof4.01(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.01(b).
(c) Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect more than five any Demand Registrations for the CSH Shareholders; Registration (A) within one month of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 4.02 (subject to Section 4.01(f)) and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale at least 50% of the Common Stock number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included) or (B) within one month of any other Underwritten Offering pursuant to Section 4.03(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodaccordance with Section 4.04.
(bf) Promptly after The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the expiration written consent of Stockholders participating in such Demand Registration that hold a majority of the 10-day period referred to Registrable Securities included in Section 5.01(a)(iisuch Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) hereofadvises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company will notify all the Holders that are not Registrable Securities, sought to be included registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the Demand Registration following order of the other Holders and priority: (i) first, up to the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) mayin such Demand Registration by the Stockholders, at any time prior to which, in the effective date opinion of the registration statement relating to such registration, revoke such request, underwriter can be sold without liability to any adversely affecting the marketability of the other Holdersoffering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by providing a written notice to such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company revoking such requestproposes to sell; and (iii) third, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault all other securities of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities duly requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Sizestatement, pro rata among such Holders on the basis of the relative number of Registrable Securities so such other securities requested to be included in or such registration); and
(B) second, any securities proposed to be registered other method determined by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning Acquisition Entity for so long as a majority of the Shares acquired outstanding Common Stock of the Company is owned by its Permitted Transferees and thereafter (ii) by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any Stockholder participating in such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersthat holds (together with its Permitted Transferees) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Stockholders Agreement (OneMain Holdings, Inc.), Stockholders Agreement (OneMain Holdings, Inc.)
Demand Registration. (a) If If, at any time following the earlier of one hundred and eighty (180) days after the effective date of the registration statement for a Qualified IPO, the Company shall receive a written request by from the CSH Shareholders Designated Holders holding at least five percent (any such requesting Person, a "Selling 5%) Registrable Securities then outstanding (the “Requesting Shareholder"”) that the Company effect the registration of the Registrable Securities under the Securities Act of all such Requesting Shareholder’s Registrable Securities where the anticipated gross proceeds (before the deduction of any discounts or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereofcommissions) would be at least US$200 million, then the Company shall promptly give written notice of such requested registration (each such request, a "“Demand Registration"”) to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Shareholder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholdersregistration under this Section 1; and
(ii) subject to the restrictions set forth in Sections 1(e) and 2, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholder that any Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder with rights to request registration under this Section 1 (all such Shareholders, together with the Selling Requesting Shareholders, and any Shareholders participating in a Piggyback Registration pursuant to Section 2, the "Holders"“Registering Shareholders”) has have requested the Company to register by written request received by the Company within 10 days five (one of which shall be a 5) Business Day) Days after the receipt by such Holders of such written notice given by Shareholders receive the Company, ’s notice of the Demand Registration; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof1(d), the Company shall not be obligated to effect more than five a total of three (3) Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated pursuant to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000this Section 1. In no event will shall the Company be required to effect more than one (1) Demand Registration hereunder within any four-six- (6-) month period.
(b) Promptly after the expiration of the 10-day five- (5-) Business Day period referred to in Section 5.01(a)(ii) hereof1(a)(ii), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (i1) has become effective under the Securities Act and (2) has remained effective for a period of at least one hundred and eighty (180) days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder); or
(ii) all if the Maximum Offering Size is reduced in accordance with Section 1(e) so that less than fifty percent (50%) of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, of the offering of Registrable Securities pursuant Requesting Shareholders sought to be included in such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effectedare included.
(e) If a Demand Registration involves an Underwritten Public Offering underwritten public offering and the managing underwriter shall advise advises the Company and the Selling Requesting Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and Requesting Shareholders;
(ii) second, all Registrable Securities requested to be included in such registration by any other Holder Registering Shareholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders other Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each such Shareholder); and
(Biii) secondthird, any securities proposed to be registered by any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) Upon written notice to each Selling Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 1 on one occasion during any period of six twelve (12) consecutive months for a reasonable time specified in the notice but not exceeding 90 ninety (90) days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Requesting Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 closing of Common Stockan initial public offering, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request Company shall use its reasonable best efforts to qualify for registration on Form F-3. At any time following one hundred and eighty (180) days after the effective date of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning registration statement for a majority of Qualified IPO and when the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date Company is eligible to use a Form F-3 registration statement, each Designated Holder may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required in writing to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand file a Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement Statement on form S-3 Form F-3 (or any successor form to Form F-3, or any comparable form for Registration in a jurisdiction other than the United States) for a public offering of Registrable Securities (including without limitation a Registration Statement for the sale on a continuous or a delayed basis by the holders of the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar short-rule that may be adopted by the SEC) for which the Company is entitled to use Form F-3 or a comparable form to register the requested Registrable Securities. Upon receipt of such a request the Company shall (i) promptly give written notice of the proposed registration statementto all other holders of Registrable Securities and (ii) shall be in connection with an Underwritten Public Offeringas soon as practicable, and if in any event within one hundred and twenty (120) days of the managing underwriter shall advise receipt of such request, cause the Registrable Securities specified in the request to be registered and qualified for sale and distribution in such jurisdictions as such Designated Holder may reasonably request. Each Designated Holder may at any time, and from time to time, require the Company in writing that, in its opinion, to effect the use registration of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formRegistrable Securities under this Section 1(g).
Appears in 2 contracts
Sources: Shareholders Agreement (MINISO Group Holding LTD), Shareholders Agreement (MINISO Group Holding LTD)
Demand Registration. (ai) If For so long as the Company shall receive a written Partnership owns any Registrable Securities and is otherwise entitled to exercise its right (“Initial Demand Right”) to request by that ENLK prepare and file an initial registration statement (the CSH Shareholders (any such requesting Person, a "Selling Shareholder"“Initial Registration Statement”) that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") pursuant to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidSection 2.1(a) of the Registrable Securities so to be registered; provided thatRegistration Rights Agreement, subject to Section 5.01(d) hereofeither the TPG Investors, on the Company shall not be obligated to effect more than five Demand Registrations for one hand, or the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand RegistrationGS Investors, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of on the other Holders and the number hand, upon delivery of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking Partnership and the other Investor, may request that the Partnership exercise its Initial Demand Right and the Partnership, no earlier than three Business Days following receipt of such request, will exercise its Initial Demand Right in accordance with the Registration Rights Agreement; provided, however, that notwithstanding anything in this Section 6.2(a) or in the Registration Rights Agreement to the contrary, no Investor shall have the right to request that the Partnership exercise its Initial Demand Right after the date on which case such Investor and its Affiliates no longer collectively own more than 50% of the Class A Units that such Investor and its Affiliates owned as of the Closing.
(ii) If the Partnership has not exercised its Initial Demand Right, either the TPG Investors, on the one hand, or the GS Investors, on the other hand, to the extent such Investors directly own Registrable Securities and following prior consultation with the other Investors, may exercise any respective rights they may have to request that ENLK prepare and file an Initial Registration Statement pursuant to Section 2.1(a) of the Registration Rights Agreement; provided, however, that notwithstanding anything in this Section 6.2(a) or in the Registration Rights Agreement to the contrary, no Investor shall have the right to request that ENLK file an Initial Registration Statement after the date on which such Investor and its Affiliates no longer collectively own more than 50% of the Registrable Securities to which such Investor was entitled as of the Closing.
(iii) Following the filing of the Initial Registration Statement, for so long as the Partnership owns any Registrable Securities and is otherwise entitled to exercise its right to request the filing of additional Registration Statements under Section 2.1(a) of the Registration Rights Agreement (each, an “Additional Demand Right”), either the TPG Investors, on the one hand, or the GS Investors, on the other hand, upon delivery of a written notice to the Partnership and the other Investor, may request that the Partnership exercise an Additional Demand Right and the Partnership, no earlier than three Business Days following receipt of such request, so revokedwill exercise such Additional Demand Right in accordance with the Registration Rights Agreement; provided, however, that without the prior written consent of the other Investors, neither the TPG Investors, on the one hand, nor the GS Investors, on the other hand, shall be considered have any right to request the filing of a Demand number of additional Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested Statements pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto 6.2(a)(iii) and Section 6.2(a)(iv) that is greater than such Investors’ proportionate share (i) has become effective under the Securities Act and (ii) all based on such Investors’ then-current relative ownership of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with owned by any stop order, injunction or other order or requirement all Investors) of the SEC or other governmental agency or court such registration will be deemed not total number of Registration Statements that are permitted under Section 2.1(a) of the Registration Rights Agreement, rounded to have been effectedthe nearest whole number.
(eiv) If Following the filing of the Initial Registration Statement, if any of the TPG Investors, on the one hand, or the GS Investors, on the other hand, directly owns any Registrable Securities, such Investor may exercise any rights it may have to request the filing of additional Registration Statements under Section 2.1(a) of the Registration Rights Agreement; provided, however, that such Investor provides written notice to the other Investor at least five Business Days prior to making any such request; provided further, that without the prior written consent of the other Investors, neither the TPG Investors, on the one hand, nor the GS Investors, on the other hand, shall have any right to request the filing of a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested additional Registration Statements pursuant to be included in Section 6.2(a)(iii) and this Section 6.2(a)(iv) that is greater than such registration Investors’ proportionate share (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all based on such Investors’ then-current relative ownership of the shares of Registrable Securities owned by all Investors) of the Holders, in any such case, exceeds the largest total number of shares which can be sold without having an adverse effect on such offeringRegistration Statements that are permitted under Section 2.1(a) of the Registration Rights Agreement, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up rounded to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Companynearest whole number.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Coordination and Securityholders’ Agreement (Enfield Holdings Advisors, Inc.), Coordination and Securityholders’ Agreement (Enfield Holdings Advisors, Inc.)
Demand Registration. (a) If At any time after the earlier of (x) the third anniversary of the date of this Agreement and (y) the first day on which the members of the Board that are independent under the listing standards of the New York Stock Exchange, plus (without duplication) the members of the Board that are Series A Designees constitute less than a majority of the members of the Board, subject to the right of the Company under Section 2.1(f) and Section 2.3(j), upon written notice (a “Demand Notice”) by Holders owning a majority of the then outstanding Registrable Securities, the Company shall receive use its commercially reasonable efforts to prepare and file with the SEC a written request Registration Statement covering the sale or distribution by the CSH Shareholders Holders by way of underwritten offering, block sale or any other distribution plan (other than pursuant to a merger, exchange offer or similar transaction) designated in such Demand Notice, but excluding any such requesting Personplan of distribution for offers and sales on a delayed or continuous basis that would require a “shelf” registration, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which requested to be registered in such Demand Notice on Form S-3 (except if the Company has been so requested is not then eligible to register by for resale the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to on Form S-3, in which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all case such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which registration shall be a Business Day) after on another appropriate form and shall provide for the receipt registration of such Registrable Securities for resale by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (Holders) in accordance with the intended methods thereof as aforesaidforegoing (a “Demand Registration”) on or prior to the date that is thirty (30) days from the date of such Demand Notice (such date of actual filing, the Registrable Securities so “Filing Date”), and shall use its commercially reasonable efforts to cause such Demand Registration to be registered; provided that, subject to Section 5.01(d) hereof, declared effective by the Company shall not be obligated to effect more than five Demand Registrations for SEC as promptly as practical after the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodfiling thereof.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereofOnce a Demand Registration is declared effective, the Company will notify all shall, subject to Section 2.1(f) and Section 2.3(j), use its commercially reasonable efforts to cause such Demand Registration to be continuously effective until the earlier of (A) the time that the Registrable Securities covered by such Demand Registration have been disposed of pursuant thereto and (B) the date that is 180 days after the effective date of such Demand Registration (with respect to any Demand Registration, such period from initial effectiveness thereof until the earlier of the times specified in the immediately preceding clauses (A) and (B), the “Effectiveness Period”). In connection with each Demand Registration, the Company shall request effectiveness of the applicable Registration Statement (and any post-effective amendments thereto) at 5:00 p.m., Eastern time (or such other time as may reasonably be requested by or on behalf of a majority in interest of the Holders participating in such registration), on the effective date and use its commercially reasonable efforts to deliver the Prospectus (or any supplements thereto), which delivery may be made electronically, by 8:00 a.m. Eastern time on the first Business Day after such effective date. The Company shall use commercially reasonable efforts to file the Prospectus with the SEC by 8:00 a.m. Eastern time on the first Business Day after such effective date.
(c) If any Demand Registration ceases to be effective under the Securities Act for any reason at any time during the applicable Effectiveness Period, the Company shall use its commercially reasonable efforts to promptly cause such Demand Registration to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Demand Registration), and in any event shall use its commercially reasonable efforts to, within thirty (30) days of such cessation of effectiveness, amend such Demand Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Demand Registration or (ii) at the option of the Company, file an additional Registration Statement (a “Subsequent Registration”) for the purpose of effecting the offering and sale by Holders thereof by way of underwritten offering, block sale or any other distribution plan (other than pursuant to a merger, exchange offer or similar transaction) designated in the applicable Demand Notice of all securities that are Registrable Securities as of the time of such filing and included in the applicable Demand Notice. If a Subsequent Registration is filed, the Company shall use its commercially reasonable efforts to (x) cause such Subsequent Registration to become effective under the Securities Act as promptly as is reasonably practicable after such filing and (y) keep such Subsequent Registration (or another Subsequent Registration meeting the same criteria) continuously effective until the end of the applicable Effectiveness Period. Any such Subsequent Registration shall be a Registration Statement (other than a “shelf” registration statement for sales on a delayed or continuous basis) on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by such Holders by way of underwritten offering, block sale or any other distribution plan (other than pursuant to a merger, exchange offer or similar transaction) designated in the applicable Demand Notice.
(d) The Company shall supplement and amend any Demand Registration or any Subsequent Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such registration if required by the Securities Act or as reasonably requested by the Holders covered by such registration.
(e) If a Demand Notice delivered in accordance with Section 2.1(a) specifies that the sale of the Registrable Securities is intended to be conducted through an underwritten offering, the Holders of a majority of Registrable Securities included in such Demand Notice shall have the right to select the managing underwriter or underwriters to administer the offering; provided, however, that such managing underwriter or underwriters shall be reasonably acceptable to the Company. The Holders of Registrable Securities included in such Demand Notice and the Company shall enter into an underwriting agreement in such customary form as shall have been negotiated and agreed to by the Company with the underwriter or underwriters selected for such underwriting. Notwithstanding any other Holders and provision of this Section 2.1, if the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities advise the Board that in its or their good faith opinion the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior in such Registration Statement and all other securities proposed to be sold in the effective date offering contemplated thereby exceeds the number which can be sold in such underwritten offering without adversely affecting the success of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such requestoffering, in which case such requestlight of market conditions, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant and such other securities to be included in such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will underwritten Registration Statement shall be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its viewallocated, (i) first, up to the total number of securities the Holders have requested in the Demand Notice to be included in such Registration Statement (pro rata based upon the number of shares securities that each of Registrable Securities them shall have so requested to be included in such offering), and (ii) only if all the securities referred to in clause (i) have been included, the number of securities that other holders with registration rights have proposed to include in such Demand Registration (including any pro rata based upon the number of securities which the Company proposes that each of them shall have so requested to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration) that, in the priority listed belowopinion of the managing underwriter or underwriters can be so sold. If any Holder disapproves of the terms of any such underwriting, up such Holder may elect to withdraw therefrom by written notice to the Maximum Offering SizeCompany and the managing underwriter or underwriters (provided that, if the managing underwriter or underwriters have provided such Holder with written notice of the date on which the applicable Registration Statement will become effective no later than five Business Days prior to such effectiveness date, such Holder’s written notice of such election must be given at least two Business Days prior to effectiveness of the applicable Registration Statement). Any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration.
(f) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) after the Company has effected three (3) registrations pursuant to this Section 2.1, and such registrations have been declared or ordered effective or withdrawn (the “Maximum Demand Registrations”), provided that a registration will count for this purpose only if (A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration are registered and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) secondsuch Registration Statement becomes effective or is withdrawn at the request of a majority in interest of the Holders initiating such registration (other than a withdrawal because, any securities proposed at the time of such withdrawal, the Holders have learned of material adverse information concerning the Company not known to be registered by the Company.Holders at the time of their request for such registration and have withdrawn their request for registration with reasonable promptness after learning of such material adverse information);
(fii) Upon written notice to each Selling Shareholder, if the Company may postpone effecting has effected a registration pursuant to this Section 5.01 on one occasion during any period 2.1 within the preceding six (6) months, and such registration has been declared or ordered effective or withdrawn at the request of six consecutive months for a reasonable majority in interest of the Holders initiating such registration (other than a withdrawal because, at the time specified in of such withdrawal, the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm Holders have learned of recognized national standing shall advise material adverse information concerning the Company not known to the Holders at the time of their request for such registration and the Selling Shareholders have withdrawn their request for registration with reasonable promptness after learning of such material adverse information and other than a withdrawal in writing light of market conditions that effecting the registration would materially and Holders have reasonably determined are likely to adversely affect an the success of the offering to which such registration relates); or
(iii) in any particular jurisdiction in which the Company would be required to execute a general consent to service of securities of process in effecting such Company the preparation of which had then been commenced or (2) registration, unless the Company is in possession of material non-public information the disclosure of which during the period specified already subject to service in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date jurisdiction and except as may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by under the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersSecurities Act.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Investor Rights Agreement (Martha Stewart Living Omnimedia Inc), Securities Purchase Agreement (Martha Stewart Living Omnimedia Inc)
Demand Registration. (a) If At any time after the Company shall receive occurrence of a Put Dishonor, upon the written request by of the CSH Shareholders (any such holders of a majority of the Registrable Securities requesting Person, a "Selling Shareholder") that the Company State Auto Financial effect the registration under the Securities Act of all or a portion part of such Selling Shareholder's holders' Registrable Securities, Securities and specifying the number of Registrable Securities to be registered and the intended method of disposition thereofthereof (a "REGISTRATION REQUEST"), then the Company shall promptly State Auto Financial will promptly, and in no event more than ten (10) Business Days after receipt of such Registration Request, give written notice of such requested registration (a "Demand RegistrationNOTICE OF DEMAND REGISTRATION") of such request to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholdersall other holders of Registrable Securities, and thereupon will use its best efforts to effect, as expeditiously as possible, effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company State Auto Financial has been so requested to register by such holders of a majority of the Selling Shareholders, then held by the Selling ShareholdersRegistrable Securities; and
(ii) all other Registrable Securities the holders of which have made written requests to State Auto Financial for registration thereof within 20 days after the giving of the same type as that to Notice of Demand Registration (which requests shall specify the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one intended method of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Companydisposition thereof), all to the extent necessary requisite to permit the disposition (in accordance with the intended methods thereof as aforesaidthereof) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, . If requested by the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect holders of a Demand Registration unless the aggregate proceeds expected to be received from the sale majority of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size")Demand Registration, the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, method of disposition of all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by shall be an underwritten offering effected in accordance with SECTION 7.4(a) hereof. Subject to paragraph (e) of this SECTION 7.1, State Auto Financial may include in such registration other securities for sale for its own account or for the account of any other Holder Person. If any security holders of State Auto Financial (allocatedother than the holders of Registrable Securities in such capacity) register securities of State Auto Financial in a Demand Registration in accordance with this SECTION 7.1, if necessary for such holders shall pay the offering not to exceed the Maximum Offering Size, fees and expenses of their counsel and their pro rata among such Holders share, on the basis of the relative number respective amounts of Registrable Securities so requested to be the securities included in such registration); and
(B) secondregistration on behalf of each such holder, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and Expenses if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then Registration Expenses for such registration shall be effected on such other formare not paid by State Auto Financial for any reason.
Appears in 2 contracts
Sources: Standby Purchase Agreement (State Auto Financial Corp), Standby Purchase Agreement (State Auto Financial Corp)
Demand Registration. (a) If at any time following the earlier of (x) one hundred and eighty (180) days after the effective date of the registration statement for a Public Offering and (y) the expiration of the period during which the managing underwriters for such Public Offering shall prohibit the Company from effecting any other public sale or distribution of Registrable Securities, the Company shall receive a written request by from any Investor (the CSH Shareholders (any such requesting Person, a "Selling “Requesting Shareholder"”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request, a "“Demand Registration"”) at least twenty five (25) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ registration statement relating to such Demand Registration to the other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Shareholder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholdersregistration under this Section 10.01; and
(ii) subject to the restrictions set forth in Section 10.01(e) and Section 10.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholder that any Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder with rights to request registration under Section 10.01 (all such Shareholders, together with the Selling Requesting Shareholders, and any Shareholders participating in a Piggyback Registration pursuant to Section 10.02, the "Holders"“Registering Shareholders”) has have requested the Company to register by written request received by the Company within 10 days twenty (one of which shall be a 20) Business Day) Days after the receipt by such Holders of such written notice given by Shareholders receive the Company, ’s notice of the Demand Registration; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof10.01(d), the Company shall not be obligated to effect more than five three (3) Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a each Investor, other than Demand Registration unless the aggregate proceeds expected to be received from the sale effected pursuant to a Registration Statement on Form F-3, for which an unlimited number of the Common Stock requested to Demand Registrations shall be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000permitted. In no event will shall the Company be required to effect more than one Demand Registration hereunder within any foursix-month period.
(b) Promptly after the expiration of the 1020-day Business Day-period referred to in Section 5.01(a)(ii) hereof10.01(a)(ii), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (i1) has become effective under the Securities Act and (ii2) has remained effective for a period of at least one hundred and eighty (180) days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been soldsold thereunder); provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than fifty percent (50%) of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 10.01(e) such that less than fifty percent (50%) of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Requesting Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and Requesting Shareholders;
(ii) second, all Registrable Securities requested to be included in such registration by any other Holder Registering Shareholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders other Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each such Shareholder); and
(Biii) secondthird, any securities proposed to be registered by any other Persons (including the Company), with such priorities among them as the Company shall reasonably determine.
(f) Upon written notice to each Selling Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 10.01 on one occasion during any period of six twelve (12) consecutive months for a reasonable time specified in the notice but not exceeding 90 ninety (90) days (which period may not be extended or renewed) (“Deferral Period”), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Requesting Shareholders in writing (which writing shall be provided to each Requesting Shareholder) that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced commenced, provided that the Company is actively employing in good faith all reasonable efforts to complete such offering of securities, or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company, with respect to this subsection (ii), provided that the Company shall furnish to each of the Requesting Shareholders a certificate signed by an authorized senior officer of the Company stating on behalf of the Company that in the good faith judgment of the Company, the Company is in possession of material non-public information and the disclosure of which would not be in the best interests of the Company at the specified time. The Company shall not register any securities for the account of itself or for any other Shareholder during such ninety (90) day Deferral Period. For clarification only, a demand right shall not be deemed to have been exercised until such deferred registration shall have been effected.
(g) After At any time following the consummation of the initial Public Offering and when the Company has effected one Demand Registration by the CSH Shareholders pursuant is eligible to this Section 5.01 of Common Stockuse a Form F-3 registration statement, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date each Investor may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required in writing to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions file an unlimited number of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement Statements on form S-3 Form F-3 (or any successor form to Form F-3, or similar short-any comparable form for Registration in a jurisdiction other than the United States) for a public offering of Registrable Securities for which the Company is entitled to use Form F-3 or a comparable form to register the requested Registrable Securities. Upon receipt of such a request the Company shall (i) promptly give written notice of the proposed registration statementto all other Shareholders and (ii) shall be in connection with an Underwritten Public Offeringas soon as practicable, and if in any event within ninety (90) days of the managing underwriter shall advise receipt of such request, cause the Registrable Securities specified in the request to be registered and qualified for sale and distribution in such jurisdictions as such Investor may reasonably request. Each Investor may at any time, and from time to time, require the Company in writing that, in its opinion, to effect the use registration of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formRegistrable Securities under this (g).
Appears in 2 contracts
Sources: Shareholder Agreement (36Kr Holdings Inc.), Shareholder Agreement (36Kr Holdings Inc.)
Demand Registration. With respect to each Demand Registration undertaken for the account of any Principal Stockholder Party up to (aand including) If the Company shall receive a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder"second Demand Registration that becomes effective as set forth in Section 4.1(b) that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securitieshereof, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) distribution of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereofpursuant thereto, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; bear all reasonable out-of-pocket fees, costs and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs expenses incurred by the Company and each Participating Stockholder Party, including, without limitation, (i) all SEC and stock exchange registration and filing fees, (ii) stock exchange listing fees, (iii) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities), (iv) printing expenses (including the expense of printing Prospectuses), (v) messenger and delivery expenses, (vi) marketing expenses (including, without limitation, expenses in connection with road shows), (vii) reasonable fees and disbursements of counsel for the Company and each Principal Stockholder Party and their independent public accountants, and (viii) all Distribution Expenses (all such expenses being herein referred to herein as the "REGISTRATION EXPENSES"). In the case of any Demand Registration undertaken thereafter, the Participating Stockholder Parties shall bear all Registration Expenses incurred by the Company and the Participating Stockholder Parties in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and on a pro rata basis according to the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the relative number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested proposed to be included in such registration by the Participating Stockholder Parties; PROVIDED, HOWEVER, that any other Holder (allocated, if necessary for Registration Expenses attributable to any securities included in the offering not to exceed Demand Registration by the Maximum Offering Size, Company in accordance with Section 4.1(a)(i)(B) hereof shall be borne by the Company on a pro rata among such Holders on the basis of according to the relative number of such Registrable Securities so requested proposed to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified it in the notice but not exceeding 90 days registration; and PROVIDED, FURTHER, that (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2x) the Company is shall bear up to a maximum of $25,000 for each Participating Stockholder Party of the fees and disbursements of counsel for such Participating Stockholder Party and (y) except to the extent set forth in possession the foregoing clause (x), each Participating Stockholder Party shall bear the fees and disbursements of material non-its counsel, independent public information accountants and other advisors. Notwithstanding the disclosure of which during the period specified in such notice the Company believesforegoing, in its reasonable judgment, would not be the event that the ▇▇▇▇ Stockholders are issued shares of Common Stock in the best interests of Merger that have not been registered under the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common StockSecurities Act, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request Stockholders shall be entitled to exercise an additional Demand Registration in which all of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired Registration Expenses shall be borne by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersCompany.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Stockholders Agreement (Unr Asbestos Disease Claims Trust), Stockholders Agreement (Rohn Industries Inc)
Demand Registration. (a) If Subject to the Company shall receive provisions of Section 2.7, at any time and from time to time on or after the date hereof, each of (i) the Gores Holders of at least a majority in interest of the then-outstanding number of Registrable Securities held by the Gores Holders (the “Gores Demanding Holders”), and (ii) AGSA (together with the Gores Demanding Holders, the “Demanding Holders”), may make a written request by demand for Registration of all or part of their Registrable Securities on (1) Form F-1 or (2) if available, Form F-3, which in the CSH Shareholders case of either clause (any such requesting Person1) or (2), may be a "Selling Shareholder") that the Company effect the shelf registration statement filed pursuant to Rule 415 under the Securities Act Act, which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand a “Demand Registration”). The Company shall, promptly following the Company’s receipt of a Demand Registration, notify, in writing all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Selling Shareholder's Holder’s Registrable SecuritiesSecurities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify the Company, in writing, within ten (10) days after the receipt by the Holder of the notice from the Company. For the avoidance of doubt, to the extent a Requesting Holder also separately possesses Demand Registration rights pursuant to this Section 2.2, but is not the Holder who exercises such Demand Registration rights, the exercise by such Requesting Holder of its rights pursuant to the foregoing sentence shall not count as the exercise by it of one of its Demand Registration rights. Upon receipt by the Company of any such written notification from a Requesting Holder(s) to the Company, subject to Section 2.2(d), such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously soon thereafter as possiblepracticable, the registration under Registration of all Registrable Securities requested by the Securities Act of:Demanding Holders and Requesting Holders pursuant to such Demand Registration.
(b) Notwithstanding the provisions of Section 2.2(a) or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) the Registrable Securities which Registration Statement filed with the Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission and (ii) the Company has complied with all of its obligations under this Agreement with respect thereto; provided, further, that if, after such Registration Statement has been so requested to register by the Selling Shareholdersdeclared effective, then held by the Selling Shareholders; and
(ii) all other an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop order or injunction of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ ShareholderCommission, any ▇▇▇▇▇ Shareholder federal or state court or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholdersother governmental agency, the "Holders"Registration Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (1) has requested such stop order or injunction is removed, rescinded or otherwise terminated, and (2) a majority-in-interest of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company to register by written request received by the Company within 10 in writing, but in no event later than ten (10) days (one of which shall be a Business Day) after the receipt by such Holders removal, rescission or other termination of such written notice given by the Companystop order or injunction, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registeredsuch election; provided thatprovided, subject to Section 5.01(d) hereoffurther, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated or required to effect file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a same Demand RegistrationHolder becomes effective or is subsequently terminated.
(c) The Subject to the provisions of Section 2.2(d) and Section 2.7, if a majority-in-interest of the Demanding Holders so advise the Company will pay all as part of their Demand Registration Expenses that the offering of the Registrable Securities pursuant to such Demand Registration shall be in connection the form of an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this Section 2.2(c), subject to Section 3.3 and Article IV, shall enter into an underwriting agreement in customary form with any the Company and the Underwriter(s) selected for such Underwritten Offering by the majority-in-interest of the Demanding Holders initiating the Demand Registration, which Underwriter(s) shall be reasonably satisfactory to the Company.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves is to be an Underwritten Public Offering and the managing underwriter shall advise Underwriter or Underwriters, in good faith, advises the Company Company, the Demanding Holders and the Selling Shareholders that, in its view, Requesting Holders (iif any) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use dollar amount or number of another form Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other Shares or other equity securities that the Company desires to sell for its own account and the Shares, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other stockholders of registration statement is the Company who desire to sell, exceeds the maximum dollar amount or maximum number of material importance to equity securities that can be sold in such Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such proposed offeringoffering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such registration shall Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) (pro rata based on the total amount of Registrable Securities held by each such Demanding Holder and Requesting Holder (if any) (such proportion is referred to herein as “Pro Rata”)) that can be effected on sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Shares or other equity securities that the Company desires to sell for its own account, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Shares or other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such other formpersons and that can be sold without exceeding the Maximum Number of Securities.
Appears in 2 contracts
Sources: Registration Rights and Lock Up Agreement (Ardagh Metal Packaging S.A.), Registration Rights and Lock Up Agreement (Gores Holdings v Inc.)
Demand Registration. (a) If To the Company shall receive extent that a written request Registration Statement filed pursuant to Section 2(b) or a Shelf Registration Statement is not available to effect the proposed transaction, following the applicable Lock-up Period, either (a) General Motors, (b) the Majority Sellers (other than General Motors) of at least a majority in interest of the then issued and outstanding number of Registrable Securities held by such Majority Sellers (other than General Motors) or (c) the Existing Holders of at least a majority in interest of the then issued and outstanding number of Registrable Securities held by the CSH Shareholders Existing Holders (any such requesting Personthe “Demanding Holders”), a "Selling Shareholder") in each case, may request that the Company effect the registration register under the Securities Act of all or a any portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested pursuant to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other a Registration Statement on Form S-1 or any successor form thereto with respect to a underwritten public offering of Registrable Securities of the same type as that to which the (each, a “Long-Form Registration”). Each request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which for a Long-Form Registration shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and specify the number of Registrable Securities requested to be included thereinin the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have 10 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”). The Selling Shareholders requesting Company shall prepare and file with the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within 60 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. Under no circumstances shall the Company be obligated to effect (x) more than an aggregate of three (3) Registrations pursuant to a Demand Registration by the Majority Sellers under this subsection 2(a) with respect to any or all Registrable Securities held by such Majority Sellers and (y) more than three (3) Registration pursuant to a Demand Registration by the Existing Holders under this subsection 2(a) with respect to any or all Registrable Securities held by such Existing Holders; provided, however, that a Registration pursuant to a Demand Registration shall not be counted for such purposes unless a Registration Statement that may be available at such time has become effective and all of the Registrable Securities requested by the Requesting Holders and the Demanding Holders to be registered on behalf of the Requesting Holders and the Demanding Holders in such Registration Statement have been sold, in accordance with Section 5 of this Agreement.
(b) The Company shall, as soon as practicable, but in any event within fifteen (15) business days after the Closing Date, file a Registration Statement to permit the public resale of all the Registrable Securities held by the Holders from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) on the terms and conditions specified in this Section 2(b) and shall use its reasonable best efforts to cause the Registration Statement to be declared effective as soon as practicable after the filing thereof, but in no event later than the earlier of (i) the 60th day following the Closing Date and (ii) the 10th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”). The Registration Statement filed with the Commission pursuant to this Section 2(b) shall be on Form S-1 or such other form of registration statement as is then available to effect a registration for the sale or resale of such Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under Section 5.01(athe Securities Act or any successor rule or provision similar thereto adopted by the Commission, covering such Registrable Securities, and shall contain a Prospectus in such form as to permit any Holder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor rule or similar provision adopted by the Commission then in effect) may, at any time prior beginning on the effective date for such Registration Statement. A Registration Statement filed pursuant to this Section 2(b) shall provide for the sale or resale pursuant to any method or combination of methods legally available to, and requested by, the Holders. The Company shall use its reasonable best efforts to cause a Registration Statement filed pursuant to Section 2(b) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement or Shelf Registration Statement is continuously available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed pursuant to this Section 2(b), but in any event within one (1) business day of such date, the Company shall notify the Holders of the effectiveness of such Registration Statement. If, after the filing such Registration Statement, a holder of Registrable Securities requests registration statement relating under the Securities Act of additional Registrable Securities pursuant to such registrationRegistration Statement, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking shall amend such request, in which case Registration Statement to cover such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registrationadditional Registrable Securities.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant shall use its reasonable best efforts to this Section 5.01 shall not be deemed qualify and remain qualified to have been effected unless register the registration statement relating thereto (i) has become effective offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. As soon as practicable after the date hereof, but not later than the Target Filing Date, the Company shall (i) prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”) that covers all Registrable Securities then outstanding for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”) and (ii) use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter. In addition, the Company shall use its reasonable best efforts to cause a Shelf Registration Statement filed pursuant to Section 2(c) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Shelf Registration Statement is available or, if not available, that another Shelf Registration Statement (if the Company is eligible to file a Shelf Registration Statement) or other Registration Statement (if the Company is not so eligible) is continuously available, for the resale of all of the Registrable Securities registered thereunder held by the Holders until all such Registrable Securities have been sold; provided that ifceased to be Registrable Securities. For purposes hereof, within 180 “Target Filing Date” shall mean the date which is 30 days after it has become effectivethe Company becomes qualified to register the offer and sale of securities under the Securities Act pursuant to a Shelf Registration Statement. If, after the offering filing of a Shelf Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such registration is interfered with by any stop orderShelf Registration, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company shall amend such Shelf Registration Statement to cover such additional Registrable Securities. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and the Selling Shareholders thatShelf Registration (as defined below), in its view, (i) a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of shares of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such registration (including any securities which request, the Company proposes shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have 10 days from the date such notice is given to notify the Company in writing of their desire to be included which are not Registrable Securities) in such registration. The Company shall prepare and file with (or (iiconfidentially submit to) the inclusion of some Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the shares of Registrable Securities owned by that the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities holders thereof have requested to be included in such registration by any other Holder (allocated, if necessary for Short-Form Registration within 30 days after the offering not date on which the initial request is given and shall use its best efforts to exceed the Maximum Offering Size, pro rata among cause such Holders on the basis of the relative number of Registrable Securities so requested Registration Statement to be included in such registration); and
(B) second, any securities proposed to be registered declared effective by the CompanyCommission as soon as practicable thereafter.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Wejo Group LTD), Merger Agreement (Virtuoso Acquisition Corp.)
Demand Registration. (a1) If At any time after the Company date hereof, and subject to the other provisions of this Section 12, the Executive shall receive have the right, exercisable by making a written request by to the CSH Shareholders (any such requesting PersonCompany, a "Selling Shareholder") to demand that the Company effect the registration under the Securities Act Registration of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the any Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) provisions of the Act. The Company shall then comply with Section 12(a)(2) hereof. Any provision herein to the contrary notwithstanding, the right to demand Registration pursuant to this Section 12 shall be limited to one Registration demand per calendar year. A right to demand Registration hereunder shall be deemed to have been exercised and all of the Company's demand Registration obligations hereunder for such calendar year shall be deemed to be fully satisfied when the registration statement filed on account of such exercise has been declared effective by the Commission. If any other executive of the Company exercises his or her right, if any, to demand that the Company effect the Registration of any Registrable Securities, then the Executive shall have the right to Register an equivalent number of Registrable Securities so to be registered; provided that, subject without reducing the number demand Registrations the Executive shall have in any calendar year.
(2) Following receipt of a request pursuant to Section 5.01(d12(a)(1) hereof, the Company shall not be obligated to effect more than five Demand Registrations (i) file within ninety (90) days thereafter a registration statement on the appropriate form under the Act for the CSH Shareholders; and provided further shares of Common Stock that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock has been requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and Register; (ii) all of if the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities applicable Offering is pursuant to an underwriting agreement, enter into an underwriting agreement in such registration is interfered with by any stop order, injunction form as said managing or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing sole underwriter shall advise require (which must only contain terms and conditions customary for offerings of equity securities of entities with market capitalizations that are approximately equal to the Company's then current market capitalization and may contain customary provisions requiring the Company and the Selling Shareholders that, in Executive to indemnify and provide contribution to the underwriter or underwriters of such Offering); and (iii) use its view, (i) the number of shares of Registrable Securities requested reasonable best efforts to be included in have such registration statement declared effective as promptly as practicable and to remain effective for at least one hundred eighty (including 180) days. Notwithstanding any securities which other provision hereof, the Executive acknowledges and agrees that there can be no guarantee or warranty from or by the Company proposes to that any such registration statement will ever be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned declared effective by the HoldersCommission, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by makes no such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of guarantee or warranty in this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersAgreement.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Executive Employment Agreement (European Micro Holdings Inc), Executive Employment Agreement (European Micro Holdings Inc)
Demand Registration. (a) If At any time after the Trigger Date, if the Company shall receive a written request by from a Shareholder or group of Shareholders, in each case holding at least 10% of the CSH Shareholders outstanding Company Securities (any such the requesting Person, a "Selling Shareholder(s) shall be referred to herein as the “Requesting Shareholder"”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling the Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least 10 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ registration statement relating to such Demand Registration to the other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its best commercially reasonable efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Company Requesting Shareholder has been so requested to register by the Selling Shareholdersregistration under this Section 2.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 2.01(e) and 2.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholder that any other Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such other Shareholders, together with the Selling ShareholdersRequesting Shareholder, the "Holders"“Registering Shareholders”) has have requested the Company to register pursuant to Section 2.02, by written request received by the Company within 10 days (one of which shall be a five Business Day) Days after the receipt by such Holders of such written notice given by other Shareholders received the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; , provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,00010,000,000 or such lesser amount that constitutes all of the Requesting Shareholder’s Registrable Securities (provided that such lesser amount is at least $5,000,000). In no event will shall the Company be required to effect more than one two Demand Registration within any four-month periodRegistrations or Underwritten Takedowns hereunder.
(b) Promptly after the expiration of the 10five-day Business Day period referred to in Section 5.01(a)(ii) hereof2.01(a)(ii), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such . A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), including without limitation if the Requesting Shareholder shall have learned of a material adverse change, or unless any development or event involving a prospective material adverse change, in the participating Shareholders reimburse condition (financial or otherwise), results of operations, business or properties of the Company from that known to the Requesting Shareholder at the time of its request and have withdrawn the request with reasonable promptness after learning of such information, or (ii) the Requesting Shareholder reimburses the Company for all costs Registration Expenses incurred by the Company in connection with it as a result of such registration, in which case such request shall not be considered a Demand Registrationrevoked request.
(c) The Company will shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been sold; sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 50% of the Registrable Securities of the Requesting Shareholder sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Shareholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Shareholders on the basis of the relative number of Registrable Securities so requested to be included in held by each such registrationShareholder); and
(Bii) second, any securities proposed to be registered by the CompanyCompany (including for the benefit of any other Persons not party to this Agreement).
(f) Upon written notice to each Selling the Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 2.01 on one occasion two occasions during any period of six twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing reasonably determines that effecting the registration would materially and adversely affect an offering of securities of such the Company the preparation of which had then been commenced commenced, or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (AC Immune SA), Registration Rights Agreement (AC Immune SA)
Demand Registration. (a) If the Company shall receive After receipt of a written request by from the CSH Shareholders Investor (or any such other Holder) requesting Person, a "Selling Shareholder") that the Company effect the a registration (a “Demand Registration”) under the Securities Act of covering all or a portion part of the Registrable Securities held by the Investor (or such Selling Shareholder's Registrable Securities, and specifying other Holder) which specifies the intended method or methods of disposition thereof, then the Company shall promptly give notify all Holders in writing of the receipt of such request and each such Holder, in lieu of exercising its rights under Section 3 hereof may elect (by written notice sent to the Company within ten (10) Business Days from the date of such requested registration (a "Demand Registration"Holder’s receipt of the aforementioned notice from the Company) to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholdershave all or part of such Holder’s Registrable Securities included in such registration thereof pursuant to this Section 2, and thereupon will use its best efforts such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to effectinclude in such registration. Thereupon the Company shall, as expeditiously as is reasonably possible, the registration under the Securities Act of:
but in any event no later than (i) forty-five (45) days (excluding any days which occur during a permitted Blackout Period under Section 4 below) after receipt of a written request for a Demand Registration or (ii) if, as of such forty-fifth (45th) day the Company does not have audited financial statements required to be included in a registration statement, thirty (30) days after receipt by the Company from its independent public accountants of such audited financial statements but in no event later than ninety (90) days after receipt of a written request for a Demand Registration Statement, file with the SEC and use its reasonable efforts to cause to be declared effective, a registration statement (a “Demand Registration Statement”) relating to all shares of Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company(“Participating Demand Holders”) for sale, all to the extent necessary required to permit the disposition (in accordance with the intended method or methods thereof thereof, as aforesaid) of the Registrable Securities so registered, provided, however, that the aggregate value of the Registrable Securities requested to be registeredregistered (i) be at least US$25 million, based on the closing trading price of the Equity Shares on the date the demand to file such Demand Registration Statement is made or (ii) include all Registrable Securities of the Investor (or other Holder) requesting the Demand Registration which remain outstanding at such time.
(1) If the Investor (or other Holder) requesting the Demand Registration or the Participating Demand Holders holding a majority of the shares being so registered in a Demand Registration relating to a public offering so request that the offering be underwritten with a managing underwriter selected in the manner set forth in Section 12 below and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of securities to be included in such offering is greater than the total number of securities which can be sold therein without having a material adverse effect on the distribution of such securities or otherwise having a material adverse effect on the marketability thereof (the “Maximum Number of Securities”), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder). If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Registration any Equity Shares of the Company and other Equity Shares held by other security holders of the Company, as the Company may in its discretion determine or be obligated to allow, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(2) If any Early Investor (or any Holder as defined in the First Registration Rights Agreement) requests pursuant to its piggy-back registration rights under the First Registration Rights Agreement to participate in a Demand Registration (the “Piggy-Back Holders”) and the managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of Registrable Securities (including, for this section only, the registrable securities held by the Piggy-Back Holders) to be included in such offering is greater than the Maximum Number of Securities, then the Company shall include in such Demand Registration the Registrable Securities that the Piggy-Back Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders and the Piggy-Back Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder or Piggy-Back Holder, as the case may be); provided thatthat (x) the Piggy-Back Holders of Registrable Securities constituting Equity Shares issuable upon conversion of the Series H CCPSs (as defined in the First Registration Rights Agreement) shall have the right upon not more than one occasion to have their Registrable Securities included in such Demand Registration prior to any other Participating Demand Holders or Piggy-Back Holders and (y) if any of International Finance Corporation, subject DEG-Deutsche Investitions – und Entwicklungsgesellschaft mbH, IFC GIF Investment Company I or Société de Promotion et de Participation pour la Coopération Économique have notified the Company of a Policy Breach (as defined in the First Registration Rights Agreement), and such Policy Breach is not rectified within 120 days after such notice, such Piggy-Back Holders shall have the right to Section 5.01(dinclude their Registrable Securities in such Demand Registration prior to any other Participating Demand Holders or Piggy-Back Holders. If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Demand Registration any Equity Shares of the Company and other Equity Shares held by other security holders of the Company, as the Company may in its discretion determine or be obligated to allow, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(c) hereofAt any time when the Company meets the requirements for the use of Form F-3 (or successor form) or Form S-3 (or successor form) under the Securities Act for registration of a secondary offering of equity securities (a “shelf registration statement”), any Demand Registration Statement may be required by the Investor (or other Holder) requesting the demand therefor, to be in an appropriate form under the Securities Act (a “Shelf Registration Statement”) relating to any or all of the Registrable Securities in accordance with the methods and distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act (the “Shelf Registration”). In the event an Investor (or other Holder) so requests a Shelf Registration, the Company shall not (x) notify all Holders in writing of the receipt of such request and each such Holder may elect (by written notice sent to the Company within fifteen (15) Business Days from the date of such Holder’s receipt of the aforementioned notice from the Company) to have all or part of such Holder’s Registrable Securities included in such registration thereof pursuant to this Section 2(c), and such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to include in such registration and (y) use its reasonable efforts to (a) file the Shelf Registration Statement with the SEC and have the Shelf Registration Statement declared effective, (b) subject to Section 4, prepare and file with the SEC such amendments and supplements to the Shelf Registration Statement and the prospectus used in connection therewith (including filing such additional registration statements as necessary and using reasonable efforts to have such registration statements be obligated declared effective so that a Shelf Registration Statement remains continuously effective as set forth below) as may be necessary to effect more comply with the provisions of the Securities Act, and the rules thereunder with respect to the disposition of all securities covered by such Shelf Registration Statement and to keep a shelf registration statement continuously effective with respect to such Registrable Securities, until the earlier of (i) the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold by the Holders, or (ii) the date on which either all such Registrable Securities are distributed to the public pursuant to Rule 144 (or any successor provision then in effect), and (c) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Shelf Registration Statement during such period in accordance with the intended methods of disposition by the Holders as set forth in the Shelf Registration Statement. Any offering under a Shelf Registration Statement shall be underwritten at the request of Holders of Registrable Securities under such Registration Statement that hold an aggregate value of the Registrable Securities at least equal to US$10 million, based on the closing trading price of the Equity Shares on a date no earlier than five Demand Registrations for the CSH Shareholdersthree (3) days prior to such request; and provided further that the Company shall not be obligated to effect a Demand Registration unless effect, or take any action to effect, an underwritten offering within six months following the aggregate proceeds expected last date on which an underwritten offering was effected pursuant to this Section 2(c) or Section 2(b). Any request for an underwritten offering hereunder shall be made to the Company in accordance with the notice provisions of this Agreement and the managing underwriter for such offering shall be selected in the manner set forth in Section 12 below. If the managing underwriter of an offering described in this Section 2(c) advises the Company and the Selling Holders of the Registrable Securities included in such offering that the size of the intended offering is such that the success of the offering or price per share of the securities sold would be adversely affected by inclusion of all the Registrable Securities requested to be received from included, then the sale amount of securities to be offered for the Common Stock accounts of Holders shall be reduced pro rata (according to the Registrable Securities requested for inclusion) to the extent necessary to reduce the total amount of securities to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior offering to the effective date of the registration statement relating to amount recommended by such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registrationmanaging underwriter.
(d) A Each Holder shall be entitled to request up to five (5) registrations of Registrable Securities pursuant to this Section 2 (each, a “Demand for Registration”); provided that no more than one (1) Demand for Registration may be made by the Holders per six-month period; and provided further, that a registration requested pursuant to this Section 5.01 2 shall not be deemed to have been effected for purposes of this Section 2(d) unless the registration statement relating thereto (i) it has become been declared effective under by the Securities Act and SEC, (ii) all it has remained effective for the period set forth in Section 5(a), (iii) Holders of the Registrable Securities registered thereunder included in such registration have not withdrawn sufficient shares from such registration such that the remaining holders requesting registration would not have been sold; provided that if, within 180 days after it has become effective, able to request registration under the provisions of Section 2 and (iv) the offering of Registrable Securities pursuant to such registration is interfered with by not subject to any stop order, injunction or other order or requirement of the SEC (other than any such stop order, injunction, or other governmental agency requirement of the SEC prompted by act or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering omission of Holders of Registrable Securities); and the managing underwriter shall advise the Company and the Selling Shareholders provided further that, in its viewthe event a Holder revokes a Demand for Registration (which revocation may only be made prior to the Company requesting acceleration of effectiveness of the applicable Registration Statement), then such Demand for Registration shall count as having been effected unless such Holder pays all the Registration Expenses in connection with such revoked Demand for Registration within thirty (i30) days of written request therefor by the Company. Notwithstanding the foregoing, a Holder may revoke a Demand for Registration without being required to reimburse the Company for any of the Registration Expenses and without such demand counting toward the number of shares of Registrable Securities requested to be included in Demand for Registrations permitted under this Section 2, if such registration (including any securities which the Company proposes to be included which are not Registrable Securities) revocation occurs during a Blackout Period or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an if there has been a material adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, change in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests business of the Company.
(ge) After Notwithstanding anything to the contrary contained herein, the Company has effected one shall not be required to prepare and file any Demand Registration by the CSH Shareholders Statement within 90 days following an underwritten offering pursuant to a Demand Registration Statement.
(f) Each Holder agrees that, in connection with any offering pursuant to this Section 5.01 of Common StockAgreement, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersit will not prepare or use or refer to, upon request any “free writing prospectus” (as defined in Rule 405 of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority Securities Act) without the prior written authorization of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock (which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event authorization shall not be unreasonably withheld), and will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to not distribute any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be written materials in connection with an Underwritten Public Offering, and if the managing underwriter shall advise offer or sale of the Company in writing that, in its opinion, the use of another form of Registrable Securities pursuant to any registration statement is of material importance to hereunder other than the success of prospectus included in a Registration Statement and any such proposed offering, then such registration shall be effected on such other formfree writing prospectus so authorized.
Appears in 2 contracts
Sources: Subscription Agreement (Azure Power Global LTD), Subscription Agreement (Azure Power Global LTD)
Demand Registration. (a) If the Company shall receive a written request by the CSH from one or more Shareholders (any such the requesting Person, a "Selling Shareholder(s) shall be referred to herein as the “Requesting Shareholder"”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling the Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least ten (10) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ registration statement relating to such Demand Registration to the other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its best commercially reasonable efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) subject to the restrictions set forth in Section 2.01(e), all Registrable Securities for which the Company Requesting Shareholder has been so requested to register by the Selling Shareholdersregistration under this Section 2.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Section 2.01(e) and Section 2.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Shareholder that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling ShareholdersRequesting Shareholder, the "Holders"“Registering Shareholders”) has requested the Company to register pursuant to Section 2.02, by written request received by the Company within 10 days seven (one of which shall be a 7) Business Day) Days after the receipt by such Holders of such written notice given by Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided thatprovided, subject to Section 5.01(d) hereofhowever, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,00010,000,000 or such lesser amount that constitutes all of the Requesting Shareholder’s Registrable Securities; provided, the proceeds expected are no less than $1,00,000.00. The Company shall file the initial registration statement with the SEC as promptly as possible, but in any event within fifteen (15) days for a Form S-3 and thirty (30) days for any other form. In no event will shall the Company be required to effect more than one two (2) Demand Registration Registrations hereunder within any four-month periodone (1) year period and no more than six (6) Demand Registrations hereunder in total.
(b) Promptly after the expiration of the 10-day seven (7) Business Day period referred to in Section 5.01(a)(ii) hereof2.01(a)(ii), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such . A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or unless (ii) the participating Shareholders reimburse Requesting Shareholder reimburses the Company for all costs incurred by the Company in connection with Registration Expenses of such registration, in which case such request shall not be considered a Demand Registrationrevoked request.
(c) The Company will shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, and regardless of whether a Demand Registration shall not be deemed to have occurred, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least one hundred eighty (180) days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been soldsold thereunder); provided provided, however, that a Demand Registration shall not be deemed to have occurred if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (x) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (y) less than 90% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder;
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 75% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included;
(iii) if the Requesting Shareholder determines in good faith to withdraw (prior to the effective date of the registration statement relating to such request) the proposed registration due to marketing or regulatory reasons;
(iv) if the registration statement relating to such request is not declared effective within ninety (90) days of the date such registration is first filed with the SEC; or
(v) if the conditions to closing specified in the underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the Requesting Shareholder).
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Shareholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which security that the Company proposes to be included which that are not Registrable SecuritiesSecurities (including any security for the benefit of any other Person not a party to this Agreement)) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Shareholders on the basis of the relative number of Registrable Securities so requested to be included in held by each such registrationShareholder); and
(Bii) second, any securities proposed to be registered by the CompanyCompany (including for the benefit of any other Person not a party to this Agreement).
(f) Upon written notice to each Selling the Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 2.01 on one occasion during any period of six (6) consecutive months for a reasonable time specified in the notice but not exceeding 90 sixty (60) days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing reasonably determines that effecting the registration would materially and adversely affect an offering of securities of such the Company the preparation of which had then been commenced or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Centerline Holding Co), Registration Rights Agreement (Centerline Holding Co)
Demand Registration. (a) If At any time after the date that is 180 days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Person that is a Stockholder (a “Requesting Stockholder”) on the date a Demand is made shall receive be entitled to make a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that of the Company effect the (a “Demand”) for registration under the Securities Act of all a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount (a portion of such Selling Shareholder's Registrable Securities, “Demand Registration”) and specifying the intended method of disposition thereof, then thereupon the Company shall promptly give written notice of such requested registration (a "Demand Registration") will, subject to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersterms of this Agreement, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best commercially reasonable efforts to effect, as expeditiously as possible, effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling ShareholdersRequesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, then held by the Selling Shareholders; andwhich may be an Underwritten Offering;
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates Company has been requested to register pursuant to Section 4.1(b); and
(iii) all shares of Common Stock which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company may elect to register by written request received by the Company within 10 days (one in connection with any offering of which shall be a Business Day) after the receipt by such Holders of such written notice given by the CompanyRegistrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidthereof) of the Registrable Securities so and the additional Common Stock, if any, to be so registered; provided that.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, subject (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company shall give written notice of such Demand to any other Persons that on the date a Demand is delivered to the Company is a Stockholder (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1). Subject to Section 5.01(d) hereof4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
(c) Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect more than five any Demand Registrations for the CSH Shareholders; Registration (A) within one month of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale at least 50% of the Common Stock number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included) or (B) within one month of any other Underwritten Offering pursuant to Section 4.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodaccordance with Section 4.4.
(bf) Promptly after The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the expiration written consent of Stockholders participating in such Demand Registration that hold a majority of the 10-day period referred to Registrable Securities included in Section 5.01(a)(iisuch Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) hereofadvises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company will notify all the Holders that are not Registrable Securities, sought to be included registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the Demand Registration following order of the other Holders and priority: (i) first, up to the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) mayin such Demand Registration by the Stockholders, at any time prior to which, in the effective date opinion of the registration statement relating to such registration, revoke such request, underwriter can be sold without liability to any adversely affecting the marketability of the other Holdersoffering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by providing a written notice to such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company revoking such requestproposes to sell; and (iii) third, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault all other securities of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities duly requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Sizestatement, pro rata among such Holders on the basis of the relative number of Registrable Securities so such other securities requested to be included in or such registration); and
(B) second, any securities proposed to be registered other method determined by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by the CSH Shareholders pursuant to this Section 5.01 of Common StockFIG LLC, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning for so long as a majority of the Shares acquired outstanding Common Stock of the Company is owned by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations Initial Stockholder, its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any Stockholder participating in such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersthat holds (together with its Permitted Transferees) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Shareholder Agreement (Springleaf Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, LLC)
Demand Registration. (a) If At any time after the date that is 180 days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Person that is a Stockholder (a “Requesting Stockholder”) on the date a Demand is made shall receive be entitled to make a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that of the Company effect the (a “Demand”) for registration under the Securities Act of all a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount (a portion of such Selling Shareholder's Registrable Securities, “Demand Registration”) and specifying the intended method of disposition thereof, then thereupon the Company shall promptly give written notice of such requested registration (a "Demand Registration") will, subject to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersterms of this Agreement, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best commercially reasonable efforts to effect, as expeditiously as possible, effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling ShareholdersRequesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, then held by the Selling Shareholders; andwhich may be an Underwritten Offering;
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates Company has been requested to register pursuant to Section 4.1(b); and
(iii) all shares of Common Stock which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company may elect to register by written request received by the Company within 10 days (one in connection with any offering of which shall be a Business Day) after the receipt by such Holders of such written notice given by the CompanyRegistrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidthereof) of the Registrable Securities so and the additional Common Stock, if any, to be so registered; provided that.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, subject (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company shall give written notice of such Demand to any other Persons that on the date a Demand is delivered to the Company is a Stockholder (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1). Subject to Section 5.01(d) hereof4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
(c) Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect more than five any Demand Registrations for the CSH Shareholders; Registration (A) within one month of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale at least 50% of the Common Stock number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included or (B) within one month of any other Underwritten Offering pursuant to Section 4.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodaccordance with Section 4.4.
(bf) Promptly after The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the expiration written consent of Stockholders participating in such Demand Registration that hold a majority of the 10-day period referred to Registrable Securities included in Section 5.01(a)(iisuch Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) hereofadvises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company will notify all the Holders that are not Registrable Securities, sought to be included registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the Demand Registration following order of the other Holders and priority: (i) first, up to the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) mayin such Demand Registration by the Stockholders, at any time prior to which, in the effective date opinion of the registration statement relating to such registration, revoke such request, underwriter can be sold without liability to any adversely affecting the marketability of the other Holdersoffering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by providing a written notice to such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company revoking such requestproposes to sell; and (iii) third, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault all other securities of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities duly requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Sizestatement, pro rata among such Holders on the basis of the relative number of Registrable Securities so such other securities requested to be included in or such registration); and
(B) second, any securities proposed to be registered other method determined by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by the CSH Shareholders pursuant to this Section 5.01 of Common StockFIG LLC, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning for so long as a majority of the Shares acquired outstanding Common Stock of the Company is owned by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations Initial Stockholders, their Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any Stockholder participating in such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersthat holds (together with its Permitted Transferees) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Shareholder Agreement (Intrawest Resorts Holdings, Inc.), Shareholder Agreement (Intrawest Resorts Holdings, Inc.)
Demand Registration. (ai) If Subject to the Company shall receive a written request by terms and conditions of this Agreement, including Section 2(a)(ii) below, at any time and from time to time after the CSH Shareholders expiration of the lock-up period applicable to the IPO, each Holder (any such requesting PersonHolder, a "Selling Shareholder"the “Initiating Holder”) that shall have the right to require the Company effect the to file one or more registration statements under the Securities Act of covering all or any part of their Registrable Securities upon written notice to the Company (a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the “Demand Notice”). The registration so requested is referred to herein as a “Demand Registration.” The Company shall promptly (but in any event, not later than ten Business Days following the Company’s receipt of a Demand Notice) give written notice (“Demand Eligible Holder Notice”) of the receipt of such requested registration Demand Notice to all Holders (other than the Initiating Holder) that, to its knowledge, hold Registrable Securities (each a "“Demand Registration"Eligible Holder”). The Company shall promptly (but in any event, not later than 60 days following the Company’s receipt of a Demand Notice) to file the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, appropriate Registration Statement (the ▇▇▇▇▇ Shareholders “Demand Registration Statement”) and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best commercially reasonable efforts to effect, as expeditiously as possibleat the earliest practicable date, the registration under the Securities Act of:
and under applicable state securities laws of (iA) the Registrable Securities which the Company has been so requested to register by the Selling ShareholdersInitiating Holder in the Demand Notice, then held by the Selling Shareholders; and
(iiB) all other Registrable Securities of the same type class or series as that those requested to be registered in the Demand Notice which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") Company has been requested the Company to register by the Demand Eligible Holders by written request received by (the “Demand Eligible Holder Request”) given to the Company within 10 days (one of which shall be a ten Business Day) Days after the receipt by such Holders giving of such written notice given the Demand Eligible Holder Notice, and (C) any Registrable Securities to be offered and sold by the Company, in each case subject to Section 2(a)(ii), all to the extent necessary required to permit the disposition (in accordance with the intended methods thereof as aforesaidof disposition) of the Registrable Securities so to be so registered; provided that, subject to Section 5.01(d) hereof, the . The Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a any requested Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of using a registration statement on form Form S-3 (whenever the Company is a Seasoned Issuer or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offeringa WKSI, and shall use an Automatic Shelf Registration Statement if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement it is of material importance to the success of such proposed offering, then such registration shall be effected on such other forma WKSI.
Appears in 2 contracts
Sources: Registration Rights Agreement (FTS International, Inc.), Registration Rights Agreement (FTS International, Inc.)
Demand Registration. (ai) If A ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Holders may request (at any time after the Company shall receive a completes an IPO) by written request by notice delivered to the CSH Shareholders (any such requesting Person, a "Selling Shareholder") Company that the Company effect the registration register under the Securities Act of all or a any portion of the Registrable Securities then held by such Selling Shareholder's ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Holders (the “Requesting ▇▇▇▇▇▇ Holders”), representing in the aggregate not less than fifty percent (50%) of the Registrable SecuritiesSecurities held by the ▇▇▇▇▇▇ Holders, for sale in the manner specified in such notice (including, but not limited to, an underwritten public offering). In each such case, such notice shall specify the number of Registrable Securities for which registration is requested, the proposed manner of disposition of such securities, and specifying the intended method minimum price per share at which the Requesting ▇▇▇▇▇▇ Holders would be willing to sell such securities in an underwritten offering. The Company shall, within five (5) Business Days after its receipt of disposition thereofany Requesting ▇▇▇▇▇▇ Holders’ notice under this Section 2(a)(i), then the Company shall promptly give written notice of such request to all other ▇▇▇▇▇▇ Holders and afford them the opportunity of including in the requested registration statement such of their Registrable Securities as they shall specify in a written notice given to the Company within twenty (a "Demand Registration"20) days after their receipt of the Company’s notice. Within ten (10) Business Days after the expiration of such twenty (20) day period, the Company shall notify all ▇▇▇▇▇▇ Holders requesting registration of (A) the aggregate number of Registrable Securities proposed to be registered by all ▇▇▇▇▇▇ Holders, (B) the proposed filing date of the registration statement, and (C) such other information concerning the offering as any Holder may have reasonably requested. If the ▇▇▇▇▇▇ Holders of a majority in aggregate amount of the Registrable Securities to be included in such offering shall have requested that such offering be underwritten, the managing underwriter for such offering shall be chosen by the ▇▇▇▇▇▇ Holders of a majority in aggregate amount of the Registrable Securities being registered, with the consent of the Company, which consent shall not be unreasonably withheld, not less than thirty (30) days prior to the proposed filing date stated in the Company’s notice, and the Company shall thereupon promptly notify such ▇▇▇▇▇▇ Holders as to the identity of the managing underwriter, if any, for the offering. On or before the 30th day prior to such anticipated filing date, any ▇▇▇▇▇▇ ▇▇▇▇▇▇ may give written notice to the Company and the managing underwriter specifying either that (A) Registrable Securities of such ▇▇▇▇▇▇ ▇▇▇▇▇▇ are to be included in the underwriting, on the same terms and conditions as the securities otherwise being sold through the underwriters under such registration or (B) such Registrable Securities are to be registered pursuant to such registration statement and sold in the open market without any underwriting, on terms and conditions comparable to those normally applicable to offerings in reasonably similar circumstances, regardless of the method of disposition originally specified in Holder’s request for registration; provided that, notwithstanding anything to the contrary contained herein, to the extent that any ▇▇▇▇▇▇ ▇▇▇▇▇▇ sells Registrable Securities off of a shelf registration statement on Form S-3 (or equivalent registration statement form) other than pursuant to an underwritten offering, such sales by the ▇▇▇▇▇▇ Holders collectively shall (x) be subject to the terms of any lock-up agreement or similar agreement entered into by such ▇▇▇▇▇▇ ▇▇▇▇▇▇ with the Company and (y) be strictly limited in any 30 consecutive day period to the sale of the number of shares (inclusive of the sale of any unlegended shares during the applicable periods by such ▇▇▇▇▇▇ ▇▇▇▇▇▇) equal to 1% of the shares of the Company outstanding as shown by the most recent report or statement published by the Company (with such limitation applying to transfers by the ▇▇▇▇▇▇ Holders and their transferees collectively); provided further, that, if the Company has filed a shelf registration statement pursuant to Section 2(a)(iii) hereof in response to receiving a request from the ▇▇▇▇▇▇ Holders to file such shelf registration statement at least 20 days prior to the 181st day after the IPO, and such registration statement has not become effective within 45 days of the filing of such shelf registration statement, the ▇▇▇▇▇▇ Holders shall have the right to sell additional shares off of such shelf registration statement (without regard to the above 1% limit) equal to (x) 1% of the outstanding shares of common stock of the Company, multiplied by (y) a fraction, the numerator of which is the number of days beyond 45 days in which it took for such effectiveness to occur, and the denominator of which is 30, minus (z) the number of unlegended shares that were available to be sold by the ▇▇▇▇▇▇ Holders and their transferees during such period beyond 45 days. Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to file a shelf registration statement prior to the 181st day after the IPO at the request of the ▇▇▇▇▇▇ Holders (and in order for the Company to be obligated to file such shelf registration statement on such 181st day, the ▇▇▇▇▇▇ Holders must have made the relevant request at least 20 days prior to such date), any sales by the ▇▇▇▇▇▇ Holders off of an effective shelf registration statement, other than pursuant to an underwritten offering, shall be effected through ▇▇▇▇▇▇▇▇ Shareholders, & Co. or a firm that is one of the ▇▇▇▇▇ Shareholders lead underwriters in the IPO and the ▇▇▇▇▇▇▇▇ ShareholdersHolders hereby agree to provide prompt written notice to the Company (including the amount and, if directly placed with an identifiable purchaser, the transferee) after each such sale.
(ii) Blackstone and its affiliates may request at any time, and thereupon will use its best efforts from time to effecttime, as expeditiously as possible, that the registration Company register under the Securities Act of:
(i) all or any portion of the Registrable Securities which held by them for sale by written notice delivered to the Company has been so requested in the manner specified in such notice (including, but not limited to, an underwritten public offering). If such manner is an underwritten public offering, the managing underwriter shall be selected by Blackstone.
(iii) The Company shall use all commercially reasonable efforts to file with the SEC within eighty (80) days (thirty (30) days if the Company may use a Registration Statement on Form S-3 to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other such Registrable Securities of and on the same type as that to which 181st day after the request by IPO if the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any Holders so request at least twenty (20) days prior thereto) after the Company’s receipt of the initial requesting ▇▇▇▇▇▇ Shareholder Holders’ or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such Blackstone’s written notice given by pursuant to Section 2(a)(i) or (ii), a registration statement for the Companypublic offering and sale, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidmethod of disposition specified by such Holders, of the number of Registrable Securities specified in such notice, and thereafter use all commercially reasonable efforts to cause such registration statement to become effective within sixty (60) days after its filing. Such registration statement may be on Form S-1 or another appropriate form (including Form S-3) that the Company is eligible to use and that is reasonably acceptable to the managing underwriter; provided, that if the Company is a WKSI, a shelf registration on Form S-3 will, at the request of Blackstone or the ▇▇▇▇▇▇ Holders, cover an unspecified number of shares of Common Stock to be sold by the Company and the Holders; provided further, that, the ▇▇▇▇▇▇ Holders shall not demand or request that the Company file a shelf registration statement prior to the 181st day after the IPO (and in order for the Company to be obligated to file such shelf registration statement on such 181 st day, the ▇▇▇▇▇▇ Holders must have made the relevant request at least 20 days prior to such date).
(iv) The Company shall not have any obligation hereunder, except in connection with any one registration pursuant to Section 2(a)(vi), to register any Registrable Securities under Section 2(a)(i) unless it shall have received requests from Holders to register at least five percent (5%) of the Outstanding Registrable Securities so Securities. Notwithstanding anything to be registered; provided that, subject to Section 5.01(d) hereofthe contrary contained herein, the Company shall not be obligated have any obligation hereunder, except as and to effect the extent provided by Section 2(a)(vi) or Section 7(b), to permit or participate in more than five Demand Registrations for an aggregate total of any two of the CSH Shareholders; and provided further that following: (A) the Company shall not be obligated filing of any registration statements filed upon the demand of the ▇▇▇▇▇▇ Holders pursuant to effect Section 2(a)(i) (excluding the filing of a Demand Registration unless shelf registration statement if the aggregate proceeds expected ▇▇▇▇▇▇ Holders have requested it to be received filed on the 181st day after the IPO) and any related offerings, and (B) underwritten takedowns requested pursuant to Section 2(a)(vii) by the ▇▇▇▇▇▇ Holders from a registration statement that has been declared effective prior to the sale of time the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodrequest for an underwritten takedown is made.
(bv) Promptly after If the expiration Company is required to use all commercially reasonable efforts to register Registrable Securities in a registration initiated upon the demand of any Holder pursuant to Section 2(a)(i) or (ii) of this Agreement and the 10-day period referred managing underwriters for such offering advise that the inclusion of all securities sought to in be registered pursuant to Section 5.01(a)(ii) hereof2 or 3 hereof may interfere with an orderly sale and distribution of or may materially adversely affect the price of such offering, then the Company will notify all include in such offering (x) first, the Holders to be included in the Demand Registration of the other Holders and the aggregate number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested Holders pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i2(a)(i) has become effective under the Securities Act and or (ii) all of ), as the Registrable Securities registered thereunder have been sold; provided that ifcase may be, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and Section 3 which the managing underwriter shall underwriters advise the Company and the Selling Shareholders thatwill not likely have such effect, in its view, (i) allocated pro rata based on the number of shares of Registrable Securities securities duly requested to be included in such registration and (including any securities which the Company proposes to be included which are not Registrable Securitiesy) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) firstsecond, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so securities requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(fvi) Upon written notice If all of the Registrable Securities of the ▇▇▇▇▇▇ Holders requested to each Selling Shareholder, the Company may postpone effecting a be included in any registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but 2(a)(i) are not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified included in such notice the Company believes, in its reasonable judgment, would not be in the best interests registration as a result of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders inclusion of any Registrable Securities in such registration pursuant to this Section 5.01 of Common Stock3, the ▇▇▇▇▇▇ Holders shall have one additional registration right under Section 2(a)(i).
(vii) Upon the demand of a Requesting ▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning or Blackstone pursuant to Section 2(a)(i) or (ii) made at any time and from time to time, the Company will facilitate in the manner described in this Agreement a majority “takedown” of shares of Common Stock off of an effective shelf registration statement on Form S-3. Notwithstanding the foregoing, such Holders may not demand a shelf takedown for an offering that will result in the imposition of a lockup on the Company and the Holders unless the shares requested to be sold by the demanding Holders in such takedown have an aggregate market value (based on the most recent closing price of the Shares acquired by Common Stock at the ▇▇▇▇▇time of the demand) of at least $50 million.
(viii) Upon the demand of a Requesting ▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will or Blackstone, the Company be required will file and seek the effectiveness of a post-effective amendment to effect more than two an existing shelf registration statement on Form S-3 in order to register up to the number of shares previously taken down off of such Demand Registrations shelf by the ▇▇▇▇▇such Holder and not yet “reloaded” onto such shelf registration statement. The Requesting ▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersor Blackstone, as applicable, and the Company will consult and coordinate with each other in order to accomplish such replenishments from time to time in a sensible manner.
(hb) If Notwithstanding any registration requested pursuant to other provision of this Section 5.01 which is proposed by Agreement, the Company shall have the right to be effected by defer or suspend the filing or effectiveness of a registration statement on form S-3 relating to any registration requested under Section 2(a) for a reasonable period of time not to exceed 90 days if a prior registration statement of the Company for an underwritten, public offering by the Company of its securities was declared effective by the SEC less than 120 days prior to the anticipated effective date of the requested registration.
(c) No registration of Registrable Securities under this Article 2 shall relieve the Company of its obligation (if any) to effect registrations of Registrable Securities pursuant to Article 3.
(d) For the avoidance of doubt, except as provided under Article 13, no Holder other than a ▇▇▇▇▇▇ ▇▇▇▇▇▇ or any successor or similar short-form registration statement) Blackstone shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance entitled to the success of such proposed offering, then such registration shall be effected on such other formany rights under this Article 2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Graham Packaging Co Inc.), Registration Rights Agreement (Graham Packaging Co Inc.)
Demand Registration. (a) If At any time after the date that is 180 days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver of the IPO Underwriting Agreement), any Person that is a Shareholder (a “Requesting Shareholder”) on the date a Demand is made shall receive be entitled to make a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that of the Company effect the (a “Demand”) for registration under the Securities Act of all an amount of Registrable Securities that, when taken together with the amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting Shareholder’s Affiliates, equals or is greater than the Registrable Amount (a portion of such Selling Shareholder's Registrable Securities, “Demand Registration”) and specifying the intended method of disposition thereof, then thereupon the Company shall promptly give written notice of such requested registration (a "Demand Registration") will, subject to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersterms of this Agreement, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best commercially reasonable efforts to effect, as expeditiously as possible, effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling ShareholdersRequesting Shareholders for disposition in accordance with the intended method of disposition stated in such Demand, then held by the Selling Shareholders; andwhich may be an Underwritten Offering;
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates Company has been requested to register pursuant to Section 4.1(b); and
(iii) all Common Shares which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company may elect to register by written request received by the Company within 10 days (one in connection with any offering of which shall be a Business Day) after the receipt by such Holders of such written notice given by the CompanyRegistrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidthereof) of the Registrable Securities so and the additional Common Shares, if any, to be so registered; provided that.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, subject (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Within five days after receipt of a Demand, the Company shall give written notice of such Demand to any other Persons that on the date a Demand is delivered to the Company is a Shareholder, provided, however, that no notice shall be required so long as the Shareholders, together, have Beneficial Ownership of at least 40% of the Voting Power of the Company. Subject to Section 5.01(d) hereof4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein (i) if a notice by the Company is required by this paragraph, within five days after such notice by the Company has been given, or (ii) if no notice by the Company is required by this paragraph, within five days after receipt by the Company of such Demand. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
(c) Each Shareholder shall be entitled to an unlimited number of Demand Registrations until such time as the Shareholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Requesting Shareholders, including, to the extent permissible, an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a any Demand Registration unless the aggregate proceeds expected (A) within three months of a “firm commitment” Underwritten Offering in which all Shareholders were given “piggyback” rights pursuant to be received from the sale Section 4.2 (subject to Section 4.1(f)) and at least 50% of the Common Stock number of Registrable Securities requested by such Shareholders to be included in such Demand Registration, in the reasonable opinion Registration were included) or (B) within three months of CSH exercised in good faith, equals or exceeds $7,500,000any other Underwritten Offering pursuant to Section 4.3(f). In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereofaddition, the Company will notify shall be entitled to postpone (upon written notice to all Shareholders) for a reasonable period of time not to exceed 60 days in succession the Holders to be included filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the Demand Registration aggregate, in any period of 12 consecutive months) if the other Holders Board determines in good faith and in its reasonable judgment that the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date filing or effectiveness of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out would cause the disclosure of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registrationmaterial, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After that the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersbona fide business purpose for preserving as confidential. In no the event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed a postponement by the Company to be effected by of the filing or effectiveness of a registration statement on form S-3 (or any successor or similar short-form registration statementfor a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Shareholder(s) shall be have the right to withdraw such Demand in connection accordance with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formSection 4.4.
Appears in 2 contracts
Sources: Shareholder Agreement (SeaCube Container Leasing Ltd.), Shareholder Agreement (SeaCube Container Leasing Ltd.)
Demand Registration. (a) If At any time after the six month anniversary of the consummation by the Company of the IPO, if the Company shall receive a written request by the CSH Shareholders from a Sponsor or Sponsors holding outstanding Registrable Securities (any such requesting PersonPersons, a "Selling Shareholder"the “Requesting Stockholders”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least ten (10) days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, other Stockholders and thereupon will shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Stockholders have requested to register by the Selling Shareholdersregistration under this Section 7.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Section 7.01(d), all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder other Stockholders (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholders, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 seven (7) days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that no Person may participate in any registration statement pursuant to this Section 7.01(a) unless such Person agrees to sell their Registrable Securities to the underwriters selected as provided in Section 7.05(f) on the same terms and conditions as apply to the Requesting Stockholders; provided, however, that no such Registering Stockholders shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Registering Stockholder as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, that such liability will be limited to, the net proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registration; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds Registration are at least $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period25,000,000.
(b) Promptly after the expiration of the 10seven-day period referred to in Section 5.01(a)(ii7.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, a majority of the Requesting Stockholders may revoke such request, request without liability to any of the other HoldersRegistering Stockholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any each Demand Registration, regardless of whether such Registration is effected; provided that holders of Registrable Securities shall pay all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Stockholder, except for the fees and disbursements of the Stockholders borne and paid by the Company as a Registration Expense.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholders that, in its view, (i) the number of shares of Registrable Securities requested that the Registering Stockholders and the Company propose to be included include in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such shares Registrable Securities can be sold (the "“Demand Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Demand Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Stockholders Agreement (INC Research Holdings, Inc.), Stockholders Agreement (INC Research Holdings, Inc.)
Demand Registration. (a) If the Company shall receive a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) At any time after the expiration of the Lock-Up Period and no sooner than 180 days after the date hereof, each of CSL, GS and BHGE (each, a “Demand Holder”) shall have the option and right, exercisable by delivering a written notice to the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which the Company has been so requested may include sales on a delayed or continuous basis pursuant to register by the Selling Shareholders, then held by the Selling Shareholders; and
Rule 415 pursuant to a Shelf Registration Statement (ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered“Demand Registration”); provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect file a Demand Registration Statement with respect to a Requested Underwritten Offering pursuant to this Section 2(a) unless (x) the anticipated aggregate proceeds offering price of the Registrable Securities to be sold in such offering, net of underwriting discounts and commissions, is reasonably expected to exceed $50 million or (y) the Registrable Securities to be received from the sale sold by such Demand Holder in such offering represent all of the Common Stock requested remaining Registrable Securities held by such Demand Holder. The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to be included include in such Demand RegistrationRegistration and the intended methods of disposition thereof. BHGE shall be entitled to no less than three Demand Registrations, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In and CSL and GS each shall be entitled to no event will the Company be required to effect more less than one two Demand Registration within any four-month periodRegistrations.
(bii) Promptly Within five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the expiration receipt of the 10-day period referred to in Section 5.01(a)(ii) hereofDemand Notice, the Company will notify shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company shall use reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other Holders limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) (1) with respect to BHGE, more than a total of three Demand Registrations within any 365 day period and (2) with respect to each of CSL and GS, more than a total of two Demand Registrations within any 365 day period, and (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities requested on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included therein. The Selling Shareholders requesting in a registration under Section 5.01(a) may, Demand Registration from such Demand Registration at any time prior to the effective date effectiveness of the applicable Registration Statement.
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(a)(vi) and Section 2(d)(iii).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration statement relating to such registration, revoke such request, without liability to any form of the other HoldersCommission (A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that if the Company becomes, by providing and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out that it intends to effect an offering of all or part of the fault of Registrable Securities included on such Registration Statement, the Company will amend or unless the participating Shareholders reimburse the Company for all costs incurred by the Company supplement such Registration Statement as may be necessary in connection with order to enable such registration, in which case such request shall not be considered a Demand Registrationoffering to take place.
(cvii) The Company will pay all Registration Expenses Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(dviii) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless In the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the event a Holder transfers Registrable Securities registered thereunder have been sold; provided that ifincluded on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, within 180 days after it has become effectiveat the request of such Holder, the offering of Company shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, Statement; provided that in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will shall the Company be required to effect more than two file a post-effective amendment to the Registration Statement unless (A) such Demand Registrations Registration Statement includes only Registrable Securities held by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions Holder, Affiliates of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by Holder or transferees of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
Holder or (hB) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the filing Holder, Affiliates of a registration statement on form S-3 (the Holder or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if transferees of the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formHolder.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (BJ Services, Inc.)
Demand Registration. (a) If the Company shall receive fails to complete the Subsequent Offering (as defined in the Note) by October 31, 2006, then upon written notice (a written request by the CSH Shareholders (any such “Demand”) from a Holder or Holders requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act of any or all of the Registrable Securities held by such Holder or a portion Holders, which notice shall specify the intended method or methods of disposition of such Selling Shareholder's Registrable Securities, the Company shall, within ten (10) days after receiving the Holder’s or Holders’ Demand, give written notice (the “Request Notice”) of such registration request to all other Holders. The Request Notice shall offer to each such Holder the opportunity to include in such registration statement such number of Registrable Securities as each such Holder may request within ten (10) days after the date of the Request Notice, subject to the limitations of this Section 2 and specifying the intended method other provisions of disposition thereofthis Agreement. As promptly as possible after such ten (10) day period, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts Best Efforts to effect, as expeditiously as possiblein the manner set forth in Section 4 hereof, the registration under the Securities Act ofof all such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in the Holder’s or Holders’ request, provided that:
(i) while a registration request is pending pursuant to this Section 2(a), the Registrable Securities which Company, with the prior approval of a majority of the Company’s Board of Directors, may delay commencing to effect such registration until 60 days after receipt of notice of such request if the Board of Directors determines, in good faith, that the filing of a registration statement at the time of such request would be materially detrimental to the Company has been so such that such filing would have a material adverse effect upon the ability of the Company to consummate a material acquisition or other comparable extraordinary transaction, provided that the Company shall not be permitted to delay a requested to register by the Selling Shareholders, then held by the Selling Shareholdersregistration in reliance on this clause (i) more than once in any twelve (12) month period; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for file a registration statement relating to a registration request pursuant to this Section 2(a) within a period of two (2) months after the CSH Shareholders; and provided further that effective date of any other registration statement of the Company shall not be obligated demanded pursuant to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodthis Section 2(a).
(b) Promptly after In the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at event that any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period 2 shall involve, in whole or in part, an underwritten offering, the Holder initiating the demand pursuant to Section 2(a) shall have the right to designate an underwriter as the sole lead managing underwriter of six consecutive months for a reasonable time specified in such underwritten offering, subject to the notice but not exceeding 90 days (Company’s consent which period may shall not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Companyunreasonably withheld.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Synova Healthcare Group Inc), Registration Rights Agreement (Synova Healthcare Group Inc)
Demand Registration. (a) If At any time during the Company shall receive a written period beginning on the expiration of the transfer restrictions set forth in Section 4.6 of the Investment Agreement, Flowers may request by on not more than three (3) occasions that Enstar register the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the registration Registration Shares under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying for public sale (the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand RegistrationRights") ). Any such Demand Rights request must be in writing signed by Flowers and must designate the specific number of Registration Shares proposed to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders be sold by Flowers in such public offering and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities proposed plan of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations distribution for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodShares.
(b) Promptly after Notwithstanding anything to the expiration contrary set forth in this Section 3, Enstar shall have no obligation hereunder to: (i) register Registration Shares if such registration involves 500,000 or fewer Registration Shares or (ii) maintain the effectiveness of any registration statement filed pursuant to this Section 3 for a period of time exceeding the 10-day period referred to Distribution Period (as defined in Section 5.01(a)(ii5(g) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registrationbelow).
(c) The Company will pay all Enstar shall be entitled in its sole discretion to delay the filing of the registration statement covering such Registration Expenses Shares for a period of up to 90 days from the date of receipt of the request for Demand Rights if its Board of Directors determines in connection with good faith that such a delay is in the best interests of Enstar and its shareholders; provided that Enstar shall not have the right to exercise such discretion to delay such filing more than once in any Demand Registration365-day period.
(d) A registration requested pursuant Notwithstanding anything to the contrary set forth in this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto 3, if Flowers exercises a Demand Right and subsequently informs Enstar in writing that (i) has become effective under the Securities Act and he desires to withdraw such registration or (ii) all he is unable to sell in excess of 50% of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to Registration Shares covered by such registration is interfered with by any stop order, injunction statement due to a deterioration in market conditions or other order or requirement of the SEC or other governmental agency or court bona fide reason, and Flowers reimburses Enstar for all Registration Expenses incurred by Enstar in connection with such registration will terminated registration, then Flowers shall be deemed not to have been effectedexercised the Demand Right under this Agreement and shall be permitted to exercise such right again in accordance with the terms of Section 3(a) of this Agreement.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration effected pursuant to this Section 5.01 on one occasion during any period 3 involves a firm commitment underwritten public offering, Flowers shall have the sole right to select the managing underwriters, subject to the approval of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days Enstar (which period may such approval not be extended unreasonably withheld or reneweddelayed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Investment Agreement (Enstar Group Inc), Registration Rights Agreement (Flowers Christopher J)
Demand Registration. (a) The Company shall give prompt notice to each Shareholder (so long as such Shareholder is an Eligible Shareholder) of each Window Period, which notice shall specify the Maximum Share Number. If at any time during a Window Period or at any time following the fifth anniversary of the Closing Date, the Company shall receive a written request by from the CSH Shareholders Shareholder (any such requesting Person, a "Selling the “Requesting Shareholder"”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) to the ▇▇▇▇▇▇▇▇▇▇▇ Other Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will . The Company shall use its best commercially reasonable efforts to effect, as expeditiously as possiblesubject to the provisions of Section 2.01(f), the registration under the Securities Act of:
(i) of the Registrable Securities for which the Company has been so Requesting Shareholders have requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) registration under this Section 2.01 and all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholders relates which that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Other Shareholders with rights to request registration under Section 2.02 (all such Other Shareholders, together with the Selling Requesting Shareholders, the "Holders"“Registering Shareholders”) has have requested the Company to register by written request received by the Company within 10 days five (one of which shall be a 5) Business Day) Days after the receipt by such Holders of such written notice given by Other Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; , provided that, ,
(i) subject to Section 5.01(d) hereof2.01(d), the Company shall not be obligated to effect more than five two Demand Registrations for the CSH Shareholders; and provided further that in any twelve-month period,
(ii) the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale number of shares of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,000. In 5% of the Common Shares outstanding at the time the request for the Demand Registration is made,
(iii) the Company shall not be obligated to include in such registration a number of Registrable Securities of the Shareholder which exceeds such Shareholder’s Pro Rata Portion (unless any Other Shareholder who is an Eligible Shareholder shall choose not to participate in such registration up to the full amount of such Other Shareholder’s Pro Rata Portion, in which case each Registering Shareholder may choose to increase the number of Registrable Securities to be included in such registration by his or her Pro Rata Portion of the Shortfall subject to the provisions of Section 2.01(e)),
(iv) the Company shall not be required to effect the registration of Registrable Securities in excess of the Maximum Share Number (the limitations in clauses (ii), (iii) and (iv) of this Section 2.01(a), collectively, the “Public Offering Limitations”),
(v) in no event will shall the Company be required to effect more than one a Demand Registration from any Requesting Shareholder unless such Requesting Shareholder at the time the request is made (x) continues to be actively engaged in the businesses of the Firm (in the reasonable judgment of the Underwritten Offering Committee), (y) has suffered a termination of employment by the Firm resulting from a disability or (z) is a Permitted Transferee (a Shareholder who fulfills the criteria in clauses (x)-(z) of this Section 2.01(a)(v), an “Eligible Shareholder”), and
(vi) The Company shall not be required to effect a Demand Registration within any four-month period180 days of a Piggyback Registration effected pursuant to Section 2.02.
(b) Promptly after the expiration of the 10five (5) Business-day Day period referred to in Section 5.01(a)(ii) hereof2.01(a), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such . A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or unless (ii) the participating Shareholders reimburse Requesting Shareholder reimburses the Company for all costs incurred by the Company Registration Expenses in connection with such registration, in which case such request shall not be considered a Demand Registrationrevoked request.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, except as set forth in Section 2.01(b).
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been soldAct; provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court court; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 66 2/3% of the Registrable Securities of the Registering Shareholders sought to be included in such registration will be deemed not to have been effectedare included.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Registering Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which or are otherwise contractually required to be included that are not Registrable SecuritiesSecurities under this Agreement) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable so much of the Company Securities requested proposed to be registered by for the parties requesting such Demand Registration and account of the Company as would not cause the offering to exceed the Maximum Offering Size,
(ii) second, all Registrable Securities requested to be included in such registration by the Registering Shareholders who are Eligible Shareholders and all Company Securities contractually required to be registered for the account of any other Holder Persons (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders and such other Persons on the basis of the relative number of Registrable Securities or such other Company Securities so requested to be included in such registrationregistration by each such Registering Shareholder and such other Person); , and
(Biii) secondthird, any securities proposed Company Securities proposed, but not contractually required, to be registered by for the Companyaccount of any other Persons with such priorities among them as the Company may determine.
(f) Upon written notice to each Selling Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by defer the filing of a registration statement on form S-3 pursuant to this Section 2.01 for a reasonable period of time not exceeding 90 days if (i) at the time the Company receives the request for such Demand Registration, there is (A) material non-public information regarding the Company which, in the judgment of the Board, is not in the Company’s best interest to disclose and which the Company is not otherwise required to disclose or (B) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any successor merger, consolidation, tender offer or other similar short-form registration statementtransaction) shall be available to the Company which, in the judgment of the Board, is not in the Company’s best interest to disclose; or (ii) prior to receiving the request for such Demand Registration, the Company has determined to effect an offering in connection with which equity securities of the Company are sold to an Underwritten Public Offeringunderwriter or underwriters for reoffering to the public pursuant to an effective registration statement under the Securities Act, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance has determined to the success of proceed with such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Partnership Agreement (Thomas Weisel Partners Group, Inc.), Partners’ Equity Agreement (Thomas Weisel Partners Group, Inc.)
Demand Registration. (a) If at any time after the date six months after the completion of the Initial Public Offering, the Company shall receive a written request by the CSH from a Shareholder or group of Shareholders (any such the requesting PersonShareholder(s) shall be referred to herein as the “Requesting Shareholder”), a "Selling Shareholder"holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or a any portion of such Selling the Requesting Shareholder's ’s Registrable SecuritiesSecurities and, and in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least fifteen (15) business days after receipt of such Demand Registration to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ other Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will shall use its best commercially reasonable efforts to effect, as expeditiously as possible, and in any event within ninety (90) days after the date the Demand Registration is given by the Requesting Shareholder, the registration under the Securities Act of:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Company Requesting Shareholder has been so requested to register by the Selling Shareholdersregistration under this Section 2.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 2.01(e) and 2.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholder that any other Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling ShareholdersRequesting Shareholder, the "Holders"“Registering Shareholders”) has have requested the Company to register pursuant to Section 2.02, by written request received by the Company within 10 days (one of which shall be a seven Business Day) Days after the receipt by such Holders of such written notice given by Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; , provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,00010,000,000. In no event will shall the Company be required to effect more than one two (2) Demand Registration within any four-month periodRegistrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the 10seven-day Business Day period referred to in Section 5.01(a)(ii) hereof2.01(a)(ii), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request. Notwithstanding clause (d) below, in which case such a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or unless (ii) the participating Shareholders reimburse Requesting Shareholder reimburses the Company for all costs incurred by Registration Expenses (other than the Company in connection with expenses set forth under clause (v) of the definition of the term Registration Expenses) of such registration, in which case such request shall not be considered a Demand Registrationrevoked request.
(c) The Company will shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been sold; sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effectedcourt.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Shareholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Shareholders on the basis of the relative number of Registrable Securities so requested to be included held by each such Shareholder, or in such registrationother proportion as shall mutually be agreed to by all such Registering Shareholders); and
(Bii) second, any securities proposed to be registered by the CompanyCompany (including for the benefit of any other Persons not party to this Agreement).
(f) Upon written notice to each Selling the Requesting Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 2.01 on one occasion two occasions during any period of six twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing reasonably determines that effecting the registration would materially and adversely affect an offering of securities of such the Company the preparation of which had then been commenced commenced, (ii) the Company reasonably determines that effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company, (2iii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, reasonably believes in its reasonable judgment, good faith would not be in the best interests of the Company.
, or (giv) After the Company has effected one Demand Registration by would be rendered unable to comply with the CSH Shareholders pursuant to this Section 5.01 of Common Stock, requirements under the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of Securities Act or the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersExchange Act.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Merus N.V.), Registration Rights Agreement (Merus B.V.)
Demand Registration. (a) If At any time following the Company shall receive six-month anniversary of the Effective Date, any Requesting Stockholder may give a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that to the Company to effect the registration under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, which written request shall specify the number of Registrable Securities to be registered and specifying the intended method of disposition thereof. At any time the Company is eligible for use of an Automatic Shelf Registration Statement, then such registration shall occur on such form. Upon the receipt of such written request, the Company shall promptly give written notice (via facsimile or electronic transmission) to the other Stockholder Groups of such requested registration (each such registration shall be referred to herein as a "“Demand Registration"”) at least ten (10) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersanticipated filing date of the Registration Statement relating to such Demand Registration. Thereafter, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will Company shall use its best commercially reasonable efforts to effect, as expeditiously soon as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Stockholder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; andregistration under this Section 2.01;
(ii) all other Registrable Securities of the same type class or series as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholder that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder other Stockholder Group (all such ShareholdersStockholder Groups, together with the Selling ShareholdersRequesting Stockholder, and any Stockholder Groups participating in a Piggyback Registration pursuant to Section 2.03, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days ten (one 10) Business Days after such Stockholder Groups receive the Company’s notice of which shall the Demand Registration; and
(iii) any Company Securities to be a Business Day) after the receipt by such Holders of such written notice given offered or sold by the Company, ; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof2.01(d), the Company shall not be obligated to effect (x) more than five (5) Demand Registrations requested by the Oaktree Stockholder, three (3) Demand Registrations requested by the JPMorgan Stockholder and three (3) Demand Registrations requested by the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Stockholder, in each case, other than Demand Registrations to be effected pursuant to a Registration Statement on Form S-3 (or any successor or similar form) under the Securities Act (“Form S-3”) for which an unlimited number of Demand Registrations shall be permitted, (y) any such Demand Registration (i) within the CSH Shareholders; and provided further that Specified Period (or such shorter period as the Company shall not be obligated to effect may determine in its sole discretion) after the effective date of any other registration statement of the Company (other than a registration statement filed in connection with an employee benefit plan or business combination transaction or a registration statement on Form S-4 or Form S-8 or any similar or successor form thereto) or (ii) in accordance with Section 2.01(f) or (z) any Demand Registration unless if the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds Registration is less than $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period20,000,000.
(b) Promptly after the expiration of the ten (10-day ) Business Day period referred to in Section 5.01(a)(ii) hereof2.01(a)(ii), the Company will notify all Registering Stockholders of the Holders identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included in the Demand Registration by each of the other Holders and the number of Registrable Securities requested to be included thereinthem. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement Registration Statement relating to such registrationDemand Registration, the Requesting Stockholder may upon notice to the Company, revoke such requestrequest in whole or in part with respect to the number of shares of Registrable Securities requested to be included in such Registration Statement, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand RegistrationRegistering Stockholders.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective; provided, however, that if the Requesting Stockholder revokes its request in whole pursuant to Section 2.01(b), the Requesting Stockholder shall reimburse the Company for and/or pay directly all Registration Expenses incurred relating to such Demand Registration.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement Registration Statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained continuously effective for a period of at least (x) one hundred eighty (180) days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been soldsold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.05(a)(ii); provided that such Registration Statement shall not be considered a Demand Registration if, within 180 days after it has become such Registration Statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 66 2⁄3% of the Registrable Securities of the Requesting Stockholder sought to be included in such registration will be deemed not to have been effectedare included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the lead managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an a material and adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration Requesting Stockholder and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, to give first priority to the inclusion of the Registrable Securities of the Requesting Stockholder and, thereafter, pro rata among such Holders the remaining Registering Stockholders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registrationregistration by each such Registering Stockholder); and;
(Bii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(f) Upon written notice Notwithstanding anything to each Selling Shareholderthe contrary contained in this Agreement, but subject to the limitation set forth in the next succeeding paragraph, the Company may postpone effecting shall be entitled to suspend its obligation to file (but not the preparation of) any Registration Statement in connection with a registration Demand Registration, any Shelf Registration (including any Shelf Public Offering), file any amendment to such a Registration Statement, file or furnish any supplement or amendment to a prospectus included in such a Registration Statement, make any other filing with the SEC, cause such a Registration Statement or other filing with the SEC to become or remain effective or take any similar action (collectively, “Registration Actions”) upon (i) the issuance by the SEC of a stop order suspending the effectiveness of any such Registration Statement or the initiation of proceedings with respect to such a Registration Statement under Section 8(d) or 8(e) of the Securities Act, (ii) the Board’s determination, in its good faith judgment, that any such Registration Action should not be taken because it would reasonably be expected to materially interfere with or require the public disclosure of any material corporate development or plan, including any material financing, securities offering, acquisition, disposition, corporate reorganization or merger or other transaction involving the Company or any of its subsidiaries or (iii) the Company possessing material non-public information the disclosure of which the Board determines, in its good faith judgment, would reasonably be expected to not be in the best interests of the Company. Upon the occurrence of any of the conditions described in (i), (ii) or (iii) above in connection with undertaking a Registration Action, the Company shall give prompt notice of such suspension (and whether such action is being taken pursuant to (i), (ii) or (iii) above) (a “Suspension Notice”) to the Stockholders. Upon the termination of such condition, the Company shall give prompt notice thereof to the Stockholders and shall promptly proceed with all Registration Actions that were suspended pursuant to this Section 5.01 paragraph. The Company may only suspend Registration Actions pursuant to the preceding paragraph on one (1) occasion during any period of six (6) consecutive months for a reasonable time specified in the notice Suspension Notice but not exceeding 90 ninety (90) days (which period may not be extended or renewed) (each such occasion, a “Suspension Period”), if . Each Suspension Period shall be deemed to begin on the date the relevant Suspension Notice is given to the Stockholders and shall be deemed to end on the earlier to occur of (1i) an investment banking firm of recognized national standing shall advise the date on which the Company gives the Stockholders a notice that the Suspension Period has terminated and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2ii) the Company is date on which the number of days during which a Suspension Period has been in possession effect exceeds the ninety (90) day period. If the filing of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one any Demand Registration by the CSH Shareholders or Shelf Registration is suspended pursuant to this Section 5.01 2.01(f), once the Suspension Period ends the Requesting Stockholder may request a new Demand Registration or a new Shelf Registration (neither such request shall be counted as an additional Demand Registration for purposes of Common Stocksubclause (x) in the proviso of Section 2.01(a)). Notwithstanding anything to the contrary in this Agreement, the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersCompany shall not be in breach of, upon request or have failed to comply with, any obligation under this Agreement where the Company acts or omits to take any action in order to comply with applicable law, any interpretation of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority staff of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (SEC or any successor order or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use decree of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formany court or governmental agency.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tribune Publishing Co), Registration Rights Agreement (Tribune Publishing Co)
Demand Registration. (a) If the Company shall receive Investor or any person acquiring by transfer any Shares (a written request by the CSH Shareholders "Permitted Transferee") (Investor and any such requesting Person, Permitted Transferees being hereinafter referred to individually as a "Selling ShareholderStockholder" and collectively as the "Stockholders") that shall at any time have the Company effect the right to request registration under the Securities Act Act, of all the Shares and any securities issued in exchange for or a portion in respect of such Selling Shareholder's Shares whether pursuant to a stock dividend, stock split, stock reclassification or otherwise (such Shares and such securities issued in exchange for or in respect of such Shares being collectively referred to herein as the "Registrable SecuritiesShares") upon the terms and subject to the conditions set forth in this Agreement.
(b) Upon receipt by ANTEC of a written request for registration hereunder, ANTEC shall (i) promptly notify each other Stockholder in writing of its receipt of such initial written request for registration and (ii) as soon as practicable, but in no event more than 45 days after receipt of such written request, file with the Securities and Exchange Commission (the "Commission"), and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its best efforts to effectcause to become effective, as expeditiously as possible, the a registration statement under the Securities Act of:
(a "Registration Statement") which shall cover the Registrable Shares specified in the initial written request and in any written request from any other Stockholder received by ANTEC within 20 days of its giving the notice specified in clause (i) hereof.
(c) If so requested by any Stockholder requesting participation in a public offering or distribution of Registrable Shares (a "Selling Stockholder") pursuant to this Section 1 or Section 2, the Registration Statement shall provide for delayed or continuous offering of Registrable Shares pursuant to Rule 415 promulgated under the Securities Act or any similar rule then in effect (a "Shelf Offering"). If so requested by Selling Stockholders who own a majority of the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling ShareholdersShares, the "Holders") has requested public offering or distribution of Registrable Shares under this Agreement shall be pursuant to a firm commitment underwriting, the Company to register by written request received by the Company within 10 days (one managing underwriter of which shall be a Business Daynationally recognized investment banking firm selected and engaged by the Selling Stockholders and approved by ANTEC, which approval shall not be unreasonably withheld. ANTEC shall enter into the same underwriting agreement as shall the Selling Stockholders, containing representations, warranties and agreements not substantially different from those customarily made by an issuer in underwriting agreements with respect to secondary distributions. ANTEC, as a condition to fulfilling its obligations under this Agreement may require the underwriters to enter into an agreement in customary form indemnifying ANTEC against any Losses (as defined in Section 6 hereof) that arise out of or are based upon an untrue statement or an alleged untrue statement or omission in the Disclosure Documents (as defined in Section 6 hereof) made in reliance upon and in conformity with written information furnished to ANTEC by the underwriters specifically for use in the preparation thereof.
(d) ANTEC shall be entitled to postpone, for a reasonable period of time, but in no event in excess of 120 days after its receipt of an initial request for registration pursuant to this Agreement, the receipt by filing of any Registration Statement, if at the time it received a request therefor ANTEC determines, in its reasonable business judgment, that such Holders registration and offering could interfere with any financing, acquisition, corporate reorganization, or other material transaction or development involving ANTEC or any of its affiliates and gives the Selling Stockholders written notice of such written determination. If ANTEC shall postpone the filing of any Registration Statement, any of the Selling Stockholders shall have the right to withdraw his or its request for such registration by giving notice given to ANTEC within 15 days of the notice of postponement. In the event that all of the Selling Stockholders withdraw their request, such request shall not be counted for purposes of determining the number of registrations to which Stockholders are entitled hereunder.
(e) Each Selling Stockholder may, before such a Registration Statement becomes effective, withdraw his or its Registrable Shares from sale, should the terms of the sale not be satisfactory to such Selling Stockholder; should all Selling Stockholders who are participating in such registration so withdraw, however, such registration shall be deemed to have occurred for the purposes of Section 4 hereof unless such Selling Stockholders pay (pro rata, in proportion to the number of shares requested to be included) within 20 days after any such withdrawal, all of the out-of-pocket expenses of ANTEC incurred in connection with such registration.
(f) In the event that a Registration Statement requested by a Selling Stockholder pursuant to Section 1 hereof involves a firmly underwritten public offering and the managing underwriter thereof determines reasonably and in good faith that the inclusion in such Registration Statement of any additional shares of Common Stock or other securities of ANTEC to be offered and sold for the account of any person (including ANTEC) other than such Selling Stockholder (each, a "Piggy-Back Seller") would adversely affect the offering of any Registrable Shares by the CompanySelling Stockholder, then the number of shares to be offered for the accounts of each Piggy-Back Seller shall be reduced or limited in proportion to the number of shares owned by each such Piggy-Back Seller (as compared to all such Piggy-Back Stockholders) to the extent necessary to permit reduce the disposition (in accordance with the intended methods thereof as aforesaid) total number of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested shares to be included in such Demand Registration, in Registration Statement by all Piggy-Back Sellers to the reasonable opinion amount that such managing underwriter determines would not adversely affect the offering of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities Shares requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested Selling Stockholder. Without limiting the foregoing, in no event shall a Selling Stockholder be required to be included in such registration by any other Holder (allocated, if necessary for reduce the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so Shares requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each such Selling Shareholder, the Company may postpone effecting a registration Stockholder pursuant to this Section 5.01 on one occasion during 1 hereof as a result of the inclusion in any period Registration Statement of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended Common Stock or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of other securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company ANTEC to be effected by offered and sold for the filing account of a registration statement on form S-3 (or any successor or similar shortPiggy-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formBack Seller.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tci Communications Inc), Registration Rights Agreement (Liberty Media Corp /De/)
Demand Registration. (a) If the Company shall receive a written request by from the CSH Shareholders DLJMB Stockholders (any such requesting Personperson, a "Selling Shareholder"the “Requesting Stockholder”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least fifteen (15) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, other Stockholders and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Stockholders have requested to register by the Selling Shareholdersregistration under this Section 1.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholders that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Stockholders with rights to request registration under Section 1.02 (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholders, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days ten (one of which shall be a 10) Business Day) Days after the receipt by such Holders of such written notice given by Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d1.01(d) hereof, the Company shall not be obligated to effect (x) more than five six Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration, Registration are at least $20 million in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one any Demand Registration within any four-month periodother than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10-day ) Business Day period referred to in Section 5.01(a)(ii1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other HoldersRegistering Stockholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any each Demand Registration, regardless of whether such Demand Registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholders that, in its view, (i) the number of shares of Registrable Company Securities requested that the Registering Stockholders and the Company propose to be included include in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Stockholders on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each); and
(Bii) second, any securities all Registrable Securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (STR Holdings (New) LLC), Registration Rights Agreement (STR Holdings, Inc.)
Demand Registration. (a) If the Company shall receive a written request by (a “Registration Request”) from an Investor Party (the CSH Shareholders (any such requesting Person, a "Selling Shareholder"“Requesting Investor”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's Investor Party’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") Registration Request to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholderseach other Investor Party, and thereupon will thereafter the Company shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
of (each such registration shall be referred to herein as a “Demand Registration”): (i) the all Registrable Securities for which the Company Requesting Investor has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
registration under this Section 4.01 and (ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has Investor Parties have requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) Days after the receipt by such Holders of such written notice given by holder receives the Company’s notice of the Demand Registration (all such Investor Parties together with the Requesting Investor, and any Investor Parties participating in a Piggyback Registration pursuant to Section 4.03, the “Registering Investors”), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, (i) subject to Section 5.01(d) hereof4.01(d), the Company shall not be obligated to effect more than five (i) two Demand Registrations in any calendar year, other than Demand Registrations to be effected pursuant to a Registration Statement on Form S-3 (or any successor thereto), for the CSH Shareholders; which an unlimited number of Demand Registrations shall be permitted and provided further that (ii) the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period30,000,000.
(b) Promptly after the expiration of the 10-day 15 Business Day period referred to in Section 5.01(a)(ii) hereof4.01(a)(ii), the Company will shall notify all Registering Investors of the Holders to be included in the Demand Registration identities of the other Holders Registering Investors and the number of shares of Registrable Securities requested to be included thereinin the Demand Registration. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement Registration Statement relating to such registrationa Demand Registration, the Requesting Investor may revoke such requestits Registration Request, without liability to any of the other HoldersRegistering Investors, by providing a written notice to the Company revoking such request, in which case such Registration Request. A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or unless (ii) the participating Shareholders reimburse Requesting Investor reimburses the Company for all costs incurred by the Company in connection with Registration Expenses of such registration, in which case such request shall not be considered a Demand Registrationrevoked request.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, except as set forth in Section 4.02(b)(ii).
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement Registration Statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all of the Registrable Securities registered thereunder included in such registration have actually been soldsold thereunder); provided that such Registration Statement shall not be considered a Demand Registration if, within 180 days after it has become such Registration Statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration Registration Statement is interfered with by any stop order, injunction or other order or requirement of any Governmental Authority and (2) less than 75% of the SEC or other governmental agency or court Registrable Securities included in such Registration Statement have been sold thereunder;
(ii) if the Maximum Offering Size is reduced in accordance with Section 4.01(e) such that less than 75% of the Registrable Securities sought to be included in such registration will be deemed not are included; or
(iii) as permitted pursuant to have been effectedSection 4.01(b) or 4.01(f).
(e) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Registering Investors that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Registering Investors (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Registering Investors on the basis of the relative number of Registrable Securities so requested to be included in such registrationtheir Relative Investor Ownership); and;
(Bii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(f) Upon written notice to each Selling ShareholderRegistering Investor (the “Delay Notice”), the Company may postpone effecting a registration pursuant to this Section 5.01 4.01 on one occasion two occasions during any period of six twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 60 days (which period may not be extended or renewedrenewed and provided that such periods in the aggregate shall not exceed 90 days in any period of twelve consecutive months), if (1) an investment banking firm the filing, initial effectiveness or continued use of recognized national standing shall advise a Registration Statement relating to a Demand Registration would require the Company to make an Adverse Disclosure (a “Demand Suspension”). No Registration Statement filed and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders subsequently withdrawn pursuant to this Section 5.01 4.01(f) shall count as a Demand Registration. The Registering Investors agree to suspend use of Common Stockthe applicable Prospectus in connection with any sale or purchase, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersor offer to sell or purchase, Registrable Securities, upon request receipt of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority Delay Notice. The Company shall immediately notify the Registering Investors upon the termination of any Demand Suspension, amend or supplement the Prospectus, if necessary, so it does not contain any untrue statement or omission and furnish to each Registering Investor such numbers of copies of the Shares acquired Prospectus as so amended or supplemented as such Registering Investor may reasonably request. The Company shall, if necessary, supplement or make amendments to the Registration Statement relating to the Demand Registration, if required by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed form used by the Company to be effected for the Demand Registration or by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance instructions applicable to the success of such proposed offering, then such registration shall be effected on such other formform or by the Securities Act.
Appears in 2 contracts
Sources: Shareholder Agreement (MRC Global Inc.), Purchase Agreement (MRC Global Inc.)
Demand Registration. (a) If The Shareholders shall each have the right to request on an unlimited number of occasions that the Company shall receive file a Registration Statement with the SEC on the appropriate registration form for all or part of the Registrable Shares held (or that would be held upon conversion of any securities into Registrable Shares) by such Shareholder once such Shareholder is no longer subject to the lock-up applicable to it entered into in connection with the IPO (which may be due to the expiration or waiver of such lock-up with respect to such Registrable Shares) (a “Demand Notice”) by delivering a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that to the Company effect specifying the registration under the Securities Act number of all or a portion of Registrable Shares such Selling Shareholder's Registrable Securities, Shareholder wishes to Register and specifying the intended method of disposition thereofdistribution thereof (a “Demand Registration” and the Shareholder submitting such Demand Registration, then the “Initiating Holder”). The Company shall promptly (i) within 10 Business Days of the receipt of such request, give written notice of such requested registration Demand Registration (a "Demand Registration"the “Company Notice”) to all Shareholders other than the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersrelevant Initiating Holder (the “Eligible Holders”), the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will (ii) use its reasonable best efforts to effectfile a Registration Statement in respect of such Demand Registration within 45 days of receipt of the request, provided that all necessary documents for the registration can be obtained and prepared within such 45-day period; and (iii) use its reasonable best efforts to cause such Registration Statement to become effective as expeditiously soon as possiblereasonably practicable thereafter. The Company shall include in such Registration all Registrable Shares that the Eligible Holders request to be included within the 10 Business Days following their receipt of the Company Notice. If the method of distributing the offering is an underwritten public offering, the registration under the Securities Act of:
Company may designate (i) in its sole discretion, the managing underwriter for such offering, subject to there being no reasonable objection from the Shareholders holding a majority of Registrable Securities which Shares referred to in the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
Demand Notice and (ii) in its reasonable discretion, the underwriters for such offering, provided that the Shareholders agree that the designation of XP Investments US, LLC and Itaú BBA USA Securities, Inc., or either of them separately, as an underwriter or underwriters, as the case may be, shall at all other Registrable Securities of the same type as times be reasonable; provided, however, that in connection with a Block Trade pursuant to which the request a Block Trade Notice delivered by the Selling Itaú Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such as Initiating Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof3 below, the Itaú Shareholders may designate in their sole discretion, the underwriters for such offering.
(b) The Company shall not be obligated to effect use its commercially reasonable efforts to file and cause to become effective: (i) more than five Demand Registrations two Registration Statements initiated pursuant to Section 2(a) in a 12 -month period; or (ii) any Registration Statement pursuant to Section 2(a) during any period in which any other registration statement (other than on Form F-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Shares are to be or were sold under the Securities Act (A) has been filed and not withdrawn or has been declared effective within the prior 180 days and (B) in connection with any such registration statement that has not been declared effective, the Company is in good faith using commercially reasonable efforts to cause such registration statement to become effective. The Registrable Shares requested to be Registered pursuant to Section 2(a) (including, for the CSH Shareholdersavoidance of doubt, the Registrable Shares of Eligible Holders requested to be registered) must represent (i) an aggregate offering price of Registrable Shares that is reasonably expected to equal at least $25,000,000 or (ii) all of the remaining Registrable Shares owned by the Initiating Holder and its Affiliates or that would be owned upon conversion of all of the Class B Common Shares held by the Initiating Holder and its Affiliates into Class A Common Shares.
(c) With respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter or underwriters formally advise(s) the Company in writing and provided further with sufficient explanation that the Company inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including, but not limited to, pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(i) first, the Registrable Shares held by the Shareholders requesting that their Registrable Shares be included in such registration pursuant to Section 2(a), pro rata based upon the number of Registrable Shares owned by each such Shareholder at the time of such registration; provided, however, that the number of Registrable Shares held by the Shareholders to be included in such underwriting shall not be obligated to effect a Demand Registration reduced unless the aggregate proceeds expected to be received all Primary Shares and Other Shares are first entirely excluded from the sale underwriting;
(ii) second, the Primary Shares; and
(iii) third, the Other Shares; provided, however, that, a registration shall not be counted as “effected” for the purposes of this Section 2 and shall not count as a registration initiated pursuant to this Section 2 for purposes of Section 2(b)(i) above, if, as a result of an exercise of the Common Stock underwriter’s cutback provisions in this clause (c), fewer than 25% of the total number of Registrable Shares that the Shareholders have requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month periodregistration statement are actually included.
(bd) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities A requested to be included therein. The Selling Shareholders requesting a registration under this Section 5.01(a) may, 2 may be rescinded at any time prior to such registration being declared effective by the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, SEC by providing a written notice to the Company revoking such from those Shareholders who initiated the request, in which case at their discretion; provided, however, that such request, so revoked, rescinded registration shall be considered not count as a Demand Registration unless such revocation arose out registration initiated pursuant to this Section 2 for purposes of the fault of Section 2(b)(i) above if the Company shall have been reimbursed (pro rata by the Shareholders requesting registration or unless the participating Shareholders reimburse the Company in such other proportion as they may agree) for all costs reasonable and documented out-of-pocket expenses incurred by the Company in connection with such rescinded registration; provided, further, however, that if, at the time of such rescission, the Shareholders who initiated the request shall have learned of an event that is, or is reasonably likely to result in, a material adverse change in which case the Company’s business, financial condition or results of operations from that known to such Shareholders at the time of their request and have withdrawn the request with reasonable promptness after learning of such information then the Shareholders shall not be considered a Demand Registration.
(c) The required to reimburse the Company will pay all Registration Expenses for any out-of-pocket expenses incurred by the Company in connection with any Demand Registration.
(d) A such rescinded registration requested and such rescinded registration shall not count as a registration initiated pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto 2 for purposes of clause (i) has become effective under the Securities Act and of subsection (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effectedb).
(e) If The Company shall be deemed to have effected a Demand Registration involves an Underwritten Public Offering for purposes of Section 2(a) if the Registration Statement is declared effective by the SEC or becomes effective upon filing with the SEC, and remains effective until the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, earlier of (i) the number of shares of date when all Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or Shares thereunder have been sold and (ii) 60 days from the inclusion of some or all effective date of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold Registration Statement (the "Maximum Offering Size"“Registration Period”), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, In the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request event that the Company register Common Stock intends to effect a Registration for purposes of Section 2(a) by means of an Underwritten Offering, no Holder may include Registrable Shares in such Registration unless such Holder, subject to the limitations set forth in Section 9, (i) agrees to sell its Registrable Shares on the basis provided in the applicable underwriting arrangements; (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required and in customary form under the terms of such underwriting arrangements and (iii) cooperates with the Company’s reasonable and customary requests in connection with such Registration (it being understood that the Company’s failure to perform its obligations hereunder, which are Registrable Securities then owned failure is caused by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event Holder’s failure to cooperate, will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed not constitute a breach by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formthis Agreement).
Appears in 2 contracts
Sources: Agreement on Registration Rights and Other Resales (XP Inc.), Registration Rights Agreement (XP Control LLC)
Demand Registration. (a) If During the Company shall receive Demand Period, the Eligible Investors may at any time make a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect the for registration of Registrable Securities under the Securities Act of all or a portion of such Selling Shareholder's Registrable SecuritiesAct, and specifying under the intended method securities or blue sky laws of disposition thereof, then the Company shall promptly give written notice of any jurisdiction reasonably designated by such requested registration Investors (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholderscollectively, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders“Demanding Holders”); provided, and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
that (i) the Registrable Securities which Company will not be required to effect any registration pursuant to this Section 3 unless the Company has been so requested to register by the Selling Shareholders, then held by the Selling ShareholdersMinimum Offering Threshold is met; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d3(c) hereofbelow, the Company shall will not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after three registrations at the expiration request of the 10-day period referred Investors pursuant to in this Section 5.01(a)(ii3(a), (iii) hereof, the Company will notify all not be required to effect such registration within the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to period beginning on the effective date of the a registration statement relating to such registration, revoke such request, without liability to any of the other Holders, be filed by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless on its behalf covering a firm commitment underwritten public offering and ending on the participating Shareholders reimburse expiration of any lock-up period (not to exceed one hundred eighty (180) days following the Company for all costs incurred effective date of such registration statement, subject to certain limited extensions in accordance with applicable NASD rules and regulations) required by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its viewunderwriters, (iiv) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up not be required to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in effect any such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting has effected a registration pursuant to this Section 5.01 on one occasion during any 3 within the twelve (12) month period immediately prior to such registration request and (v) if the Company shall furnish to such holders a certificate signed by the Chairman of six consecutive months the Board of Directors of the Company stating that in good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a reasonable time specified registration statement to be filed in the notice but near future, then the Company’s obligation pursuant to Section 3(a) hereof to file a registration statement with the Commission relating to the Registrable Securities as to which such request for a Demand Registration relates shall be deferred for a period not exceeding 90 to exceed ninety (90) days (which period may not be extended or renewed), if (1) an investment banking firm from the date of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests receipt of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stockwritten request; provided, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdershowever, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect may not utilize this right more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to once in any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholderstwelve (12) month period.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Republic Companies Group, Inc.), Registration Rights Agreement (Republic Companies Group, Inc.)
Demand Registration. (a) If Upon the Company shall receive a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") of one or more Stockholders that the Company effect the registration under the Securities Act of all or a portion but not less than all of the Registrable Securities owned by such Stockholder(s) in an underwritten offering pursuant to the terms of Section 4 hereof, but subject to the limitations set forth herein, the Company will promptly (but in no event more than five business days after the receipt of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly request) give written notice of such requested registration (a "Demand Registration") to the all other Stockholders and ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ ShareholdersCompany shall file with the Commission as promptly as practicable after sending such notice, and thereupon will use its best efforts to effectcause to become effective, as expeditiously as possible, the a registration statement under the Securities Act Act, or a prospectus supplement under or post-effective amendment to the Initial Registration Statement, registering the underwritten offering and sale of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling ShareholdersStockholders, then held by the Selling Shareholders; and
(ii) all other but not less than all of the Registrable Securities of the same type as that to which the request held by the Selling Shareholders relates which any ▇▇▇▇▇▇other Stockholder or ▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") that has requested the Company to register by written request received by given to the Company within 10 30 days (one of which shall be a Business Day) after the receipt by such Holders giving of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registeredregistered (a “Demand Registration”); provided thatprovided, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting file a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed 2(a) with respect to have been effected unless the more than one registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration are actually included without reduction as provided by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registrationSection 2(b); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(hb) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise advises the Company in writing that, in its opinion, the use number of another form securities requested to be included in such registration (including securities of the Company which are not Registrable Securities) exceeds the number which can be sold in such offering without a significant adverse effect on the price, timing or distribution of the Registrable Securities offered, the Company will (subject to the last sentence of this paragraph) include in such registration only the Registrable Securities held by the Stockholders and ▇▇▇▇▇ which has been requested to be included in such registration (the “Stockholder/▇▇▇▇▇ Registrable Securities”). In the event that the number of Stockholder/▇▇▇▇▇ Registrable Securities exceeds the number which, in the opinion of such managing underwriter, can be sold, then the Company will include in such registration only the Registrable Securities held by the Stockholders which has been requested to be included in such registration (the “Stockholder Registrable Securities”). In the event the number of Stockholder Registrable Securities exceeds the number which, in the opinion of such managing underwriter, can be sold, then the Company will include in such registration only the number of Stockholder Registrable Securities which, in the opinion of the managing underwriter, can be sold, such number to be allocated pro rata among all requesting Stockholders on the basis of the relative number of shares of Registrable Securities then held by each such holder (provided that any shares thereby allocated to any such holder that exceed such holder’s request shall be reallocated among the remaining requesting holders of Registrable Securities in like manner). Notwithstanding anything set forth above, in the event that the number of Registrable Securities requested to be included in such registration is less than the number which, in the opinion of the managing underwriter, can be sold, the Company may include in such registration the securities of the Company or any other holder of the Company’s securities proposes to sell up to the number of securities that, in the opinion of the managing underwriter, can be sold without an adverse effect on the price, timing or distribution of the Registrable Securities offered.
(c) The Company shall be entitled to postpone for a reasonable period of time (not to exceed 120 days, which may not thereafter be extended) the filing of any registration statement is otherwise required to be prepared and filed by it pursuant to Section 2(a) hereof if, at the time it receives a request for such registration, the Board of material importance Directors of the Company determines in good faith that such offering will materially interfere with a pending or contemplated financing, merger, sale of assets, recapitalization or other similar corporate action of the Company, in which case the Company shall have furnished to the success holders of such proposed offering, then Registrable Securities requesting such registration an officers’ certificate to that effect; provided that the Company shall be effected on not exercise the right to postpone registration pursuant to this Section 2(c) more than once in any 12 month period. After such other formperiod of postponement the Company shall effect such registration as promptly as practicable without further request from the holders of Registrable Securities, unless such request has been withdrawn by all participating Stockholders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Murdock Communications Corp), Registration Rights Agreement (Polar Molecular Holding Corp)
Demand Registration. (a) If one Shareholder or a group of Shareholders holding not less than 15% of the Company shall receive a written then Registrable Securities (the “Demand Requesting Shareholders”) request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that the Company effect file a registration statement (a “Demand Registration”) and the Company is not eligible to use Form S-3 (or a successor to Form S-3) in connection with the resale of the Registrable Securities to be sold pursuant to the registration statement, the Company: (i) shall promptly give notice thereof at least ten Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to all Shareholders (not including the Demand Requesting Shareholders); (ii) shall file such registration statement under the Securities Act of all or a portion within 45 days after the occurrence of such Selling Shareholder's Registrable Securities, request; and specifying the intended method of disposition thereof, then the Company (iii) thereupon shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i1) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Company has been so Demand Requesting Shareholders have requested to register by the Selling Shareholders, then held by the Selling Shareholdersregistration under this Section 2.01; and
(ii2) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Demand Requesting Shareholders relates which that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Shareholders (all such Shareholders, together with the Selling Demand Requesting Shareholders, the "Holders"“Registering Shareholders”) has have requested the Company to register by written request received by the Company within 10 seven days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) method of disposition specified by the Registering Shareholders of the Registrable Securities Securities) so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10seven-day period referred to in clause (ii) of Section 5.01(a)(ii) hereof2.01(a)(2), the Company will notify all Registering Shareholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Demand Requesting Shareholders (by majority vote) may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such . A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or unless (ii) the participating Demand Requesting Shareholders or any other Shareholder or Shareholders reimburse the Company for all costs incurred by the Company in connection with Registration Expenses of such registration, in which case such request shall not be considered a Demand Registrationrevoked request.
(c) The Company will shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Demand Requesting Shareholders elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(1) unless the registration statement relating thereto (iA) has become effective under the Securities Act Act, and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Shareholders included in such registration have actually been sold; sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court court, and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(2) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than a majority of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten underwritten Public Offering, the holders of a majority of the Registrable Securities to be sold in the Public Offering shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such Public Offering, subject to consent of the Company, which consent will not be unreasonably withheld or delayed. If a Demand Registration involves an underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Registering Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A1) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Shareholders on the basis of the relative number of Registrable Securities so requested to be included in held by each such registrationShareholder); and
(B2) second, any securities proposed to be registered by the CompanyCompany (including for the benefit of any other Persons not party to this Agreement).
(f) Upon written notice to each Selling Shareholderthe Registering Shareholders, the Company may postpone effecting a registration pursuant to this Section 5.01 2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing reasonably determines that effecting the registration would materially and adversely affect an offering of securities of such the Company the preparation of which had then been commenced commenced, or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After Notwithstanding anything that may be to the contrary in this Article 2, if the Common Shares are then listed on a national securities exchange and Rule 144 is available in connection with a sale of Registrable Securities, then the Company has effected one shall not be obligated to effect a Demand Registration by unless the CSH Shareholders pursuant aggregate proceeds expected to this Section 5.01 of Common Stock, be received from the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request sale of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority Registrable Securities requested to be included in such Demand Registration equals or exceeds $20,000,000 or such lesser amount that constitutes all the Registrable Securities of the Shares acquired by Demand Requesting Shareholders (provided that such lesser amount is at least $10,000,000) or all of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersoutstanding. In no event will Notwithstanding anything that may be to the contrary in this Article 2, the Company shall not be required to effect (A) more than two such one registration pursuant to Section 2.01 hereunder within any six-month period, or (B) more than three Demand Registrations by hereunder in the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersaggregate.
(h) If any registration requested pursuant Notwithstanding anything that may be to the contrary in this Section 5.01 which is proposed by Article 2, the Company shall not be obligated to be effected by register any Registrable Securities unless the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise holder thereof has notified the Company in writing that, of its intended method of distribution in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other forma timely manner.
Appears in 2 contracts
Sources: Master Modification Agreement (Behringer Harvard Reit I Inc), Registration Rights Agreement (Behringer Harvard Reit I Inc)
Demand Registration. (a) If At any time on or after six (6) months from the Company shall receive date of this Agreement, the Stockholders may make a written request by (specifying the CSH Shareholders intended method of disposition) (any such requesting PersonStockholders, a the "Selling ShareholderInitiating Stockholders") that the Company effect the for registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") to of all or part of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersshares of Common Stock which constitute such Initiating Stockholders' Registrable Securities; provided, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholdershowever, and thereupon will use its best efforts to effectthat, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one (1) Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and Agreement, (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities Common Stock proposed to be registered by the CompanyInitiating Stockholders shall not be less than 1,500,000 shares (subject to appropriate adjustments to reflect stock splits, stock dividends, corporate recapitalizations or similar transactions) as of the date of the request, and (iii) the Initiating Stockholders shall be the holders as of the date of the request of at least 43.5% of the then outstanding shares of Common Stock that constitute Registrable Securities hereunder.
(fb) Upon If at the time of any request to register Registrable Securities pursuant to this Section 2.1, the Company is engaged or plans to engage in within ninety (90) days of the time of such request in a registered public offering or any other activity which, in the good faith determination of the Board of Directors of the Company, would be required to be disclosed under applicable law as a result of such request or would be materially and adversely affected by the requested registration (each, a "Company Event"), then the Company may at its option direct that such request be delayed for a reasonable period of time not in excess of three (3) months from the effective date of such offering or the date of completion of such other activity, as the case may be, such right to delay a request to be exercised by the Company not more than once in any 365-day period. In addition, the Company shall not be required to effect any registration within three (3) months after the effective date of any other Registration Statement of the Company. Within ten days after receipt of a request for a Demand Registration, the Company shall give written notice (the "Notice") of such request to each Selling Shareholderall other Stockholders holding the class of stock to which such Demand Registration relates and shall include in such registration all Registrable Securities of that class that the Company has received written requests for inclusion therein within 15 days after the Notice is given. Thereafter, in the case of Demand Registration, the Company may postpone effecting a elect to include in such registration additional shares of Common Stock issued by the Company. All requests made pursuant to this Section 5.01 on one occasion during any period 2.1 shall specify the class and aggregate number of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other formregistered.
Appears in 2 contracts
Sources: Registration Rights Agreement (Corecomm LTD /De/), Agreement and Plan of Merger (Corecomm LTD)
Demand Registration. (a) If At any time following the Company shall receive a Effective Date, subject to any Lockup Period, upon the written request by the CSH Shareholders of any Holder (any in such requesting Personcapacity, a "Selling Shareholder"“Demand Party”) requesting that the Company effect the registration under the Securities Act of all or a portion of such Selling Shareholder's Registrable Securities, Securities and specifying the amount and intended method of disposition thereof, then the Company shall will (x) promptly (but in any event within five (5) days) give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersother Holders pursuant to Section 2.2 and other holders of Securities entitled to notice of such registration, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholdersif any, and thereupon will use its best efforts to effect, (y) as expeditiously as possiblepossible after a request for registration pursuant to this Section 2.1(a) is given to the Company, file a registration statement to effect the registration under the Securities Act of:
(iA) the such Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by Demand Party in accordance with the Selling Shareholders; andintended method of disposition thereof;
(iiB) all other the Registrable Securities of the same type as that to other Holders which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") Company has been requested the Company to register by written request received by given to the Company within 10 ten (10) days (one of which shall be a Business Day) after the receipt by such Holders giving of such written notice given by the Company, Company pursuant to Section 2.2; and
(C) all shares of Common Stock which the Company may elect to the extent necessary to permit the disposition (register in accordance connection with the intended methods thereof as aforesaid) any offering of the Registrable Securities so pursuant to be registered; provided that, subject to this Section 5.01(d) hereof2.1. Notwithstanding the foregoing, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated file a registration statement relating to effect a Demand Registration any registration request under this Section 2.1(a) (i) unless the aggregate proceeds offering price of the Registrable Securities to be sold in such offering is reasonably expected to be received from at least $20 million or (ii) within a period of sixty (60) days (or such lesser period as the sale managing underwriters in an underwritten offering may permit) after the effective date of the Common Stock requested any other registration statement relating to any registration request under this Section 2.1(a) or relating to any registration referred to in Section 2.3. A Demand Party can withdraw all or any portion of its Registrable Securities to be included in such Demand Registrationa registration under this Section 2.1 at any time and, in the reasonable opinion upon receipt of CSH exercised in good faithnotice thereof, equals or exceeds $7,500,000. In no event will the Company be required shall cease all efforts to effect more than one Demand Registration within any four-month periodsecure effectiveness of the applicable registration statement.
(b) Promptly after the expiration of the 10-day period referred The Company shall use reasonable best efforts to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of cause the registration statement relating filed pursuant to Section 2.1(a) to be declared effective by the SEC (if such registration, revoke registration statement is not an automatic shelf registration statement) promptly. The Company shall use reasonable best efforts to cause the registration statement to become effective and remain effective for a period of at least one hundred and eighty (180) days (or such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, shorter period in which case all Registrable Securities included in such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registrationregistration statement have actually been sold thereunder).
(c) Each registration statement prepared at the request of a Demand Party shall be effected on such appropriate form as requested by the Demand Party and as shall be reasonably acceptable to the Company.
(d) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A each registration of Registrable Securities requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected2.1.
(e) If a Demand Registration requested registration pursuant to this Section 2.1 involves an Underwritten Public Offering underwritten offering, Holders of a majority of the Registrable Securities participating in such offering shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter; provided, however, that such investment banker or bankers and managers shall be reasonably satisfactory to the Company. For the avoidance of doubt, each applicable Holder participating in such an underwritten offering shall be responsible for paying the underwriting discounts and commissions applicable to such Holder’s Registrable Securities sold by the underwriters in such underwritten offering.
(f) If a requested registration pursuant to this Section 2.1 involves an underwritten offering and the managing underwriter shall advise advises the Company and the Selling Shareholders that, in its viewopinion, the number of Securities requested to be included in such registration (including Securities of the Company which are not Registrable Securities) exceeds the number which can be sold in such offering, so as to be likely to have an adverse effect on the price, timing or distribution of, or the market for, the Securities offered in such offering, then the number of such Securities to be included in such registration shall be allocated in the following order of priority: (i) first, up to the number of shares of Registrable Securities requested to be included in such registration (including any securities which by the Company proposes Demand Party and such other Holders who have requested to be have Registrable Securities included which are not Registrable Securities) or (ii) in such registration pursuant to Section 2.2, which, in the inclusion of some or all opinion of the shares of Registrable Securities owned by the Holdersmanaging underwriter, in any such case, exceeds the largest number of shares which can be sold without having an the adverse effect on such offeringreferred to above, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all number of Registrable Securities requested to shall be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, allocated pro rata among such the Demand Party and the requesting Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration)registration statement; and
and (Bii) second, any securities proposed and only if all the Registrable Securities requested to be registered included by the CompanyDemand Party and such other Holders who have requested to have Registrable Securities included in such registration pursuant to Section 2.2 have been included, the number of Securities the Company proposes to sell that, in the opinion of the managing underwriter, can be sold without having the adverse effect referred to above.
(fg) Upon Notwithstanding anything to the contrary in this Agreement, the Company shall be entitled, upon written notice to each Selling Shareholderall applicable Holders, to postpone the Company may postpone effecting filing or the effectiveness of a registration statement filed pursuant to this Section 5.01 on one occasion during any period of six consecutive months 2.1 for a reasonable time specified period of time, which shall not exceed (i) two occasions during any twelve (12)-month period or (ii) thirty (30) days in the notice but not exceeding 90 days (which period may not be extended or renewed)succession on any one occasion, if (1) an investment banking firm of recognized national standing shall advise the Company Board determines in good faith and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, after consultation with counsel, that the filing or effectiveness of such registration statement would require the disclosure of material, non-public information that would otherwise not be in the best interests of the Company.
(g) After required to be disclosed and that the Company has effected one Demand Registration by a bona fide business purpose for preserving as confidential. The Company shall immediately notify the CSH Shareholders pursuant Holders in writing once the Company is able to this Section 5.01 of Common Stock, proceed with the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request filing or effectiveness of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority registration statement and prepare any necessary amendments or supplements thereto such that the registration statement will not include an untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock circumstances under which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall applythey were made, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersnot misleading.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (WCI Communities, Inc.), Registration Rights Agreement (WCI Communities, Inc.)
Demand Registration. (a) If at any time following the first anniversary of the Effective Date, the Company shall receive a written request by from any Stockholder, or group of Stockholders, that holds in the CSH Shareholders aggregate 20% (or, if the First Public Offering has occurred, any such requesting PersonStockholder, a or group of Affiliated Stockholders, that holds in the aggregate 10%) or more of the then outstanding Common Stock (the "Selling ShareholderRequesting Stockholder") that the Company effect the registration under the Securities Act of all or a any portion of such Selling ShareholderRequesting Stockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "Demand Registration") at least 20 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, other Stockholders and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Stockholders have requested to register by the Selling Shareholdersregistration under this Section 2.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 2.01(h) andSection 2.09, all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder other Stockholders (all such Shareholdersother Stockholders, together with the Selling ShareholdersRequesting Stockholders, the "HoldersRegistering Stockholders") has have requested the Company to register by written request received by the Company within 10 days 20 Business Days after such Stockholders receive the Company's notice of the Demand Registration (one of which such request shall be a Business Day) after include all information with respect to such Stockholder required to effect the receipt by such Holders registration of such written notice given by the CompanyStockholder's Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; , provided that, subject to Section 5.01(d) hereof2.01(d)(g), the Company shall not be obligated to effect more than five 4 Demand Registrations (at least one of which shall be available for use after the CSH Shareholders; First Public Offering has occurred), and provided further that the Company shall not be obligated to effect a Demand Registration unless (i) the aggregate proceeds expected to be received from market price or fair value on the sale date of such request of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,00025,000,000 or (ii) the number of Common Shares requested to be registered pursuant to such Demand Registration equals or exceeds 10% of then outstanding Common Shares on the date of such request. In no event will shall the Company be required to effect more than one Demand Registration hereunder within any foursix-month period.
(b) Promptly after the expiration of the 1020 Business Day-day period referred to in Section 5.01(a)(ii) hereof2.01(a)(ii), the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other HoldersRegistering Stockholders, by providing a written notice to the Company revoking such request, in which case such . A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or unless (ii) the participating Shareholders Requesting Stockholders reimburse the Company for all costs incurred by the Company in connection with Registration Expenses of such registration, in which case such request shall not be considered a Demand Registrationrevoked request.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, except as set forth in Section 2.01(b).
(d) A Any registration requested statement filed pursuant to a Demand Registration shall be a shelf registration statement that complies with the provisions of Rule 415 under the Securities Act, unless otherwise agreed by the Requesting Stockholder and at least one other Stockholder, or group of Affiliated Stockholders, if any, that holds in the aggregate 20% or more of the then outstanding Registrable Securities (a "Second Large Holder"); provided that the first registration statement filed pursuant to a Demand Registration after the First Public Offering shall be a shelf registration statement that complies with the provisions of Rule 415 under the Securities Act.
(e) Unless otherwise agreed with the Requesting Stockholder and at least one Second Large Holder, if any, any registration of the Company's Common Stock pursuant to this Section 5.01 2.01 shall be effected solely for the purpose of registering the offer and sale of the Common Stock held by the Registering Stockholders and shall not be effected for any offer or sale by the Company of securities by the Company.
(f) If requested by any Stockholder, or group of Stockholders, that holds in the aggregate 20% (or, if the First Public Offering has occurred, any Stockholder, or group of Affiliated Stockholders, that holds in the aggregate 10%) or more of the then outstanding Common Stock, the Company shall use its best efforts to have the Common Stock quoted on the Nasdaq National market or listed on a national securities exchange, in each case as designated by such Requesting Stockholder so long as the Company is subject to the reporting requirements under the Exchange Act, whether or not as a result of a Demand Registration, and otherwise qualifies for such quotation or listing.
(g) A Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 days, or in the case of a shelf registration statement, two years (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(h) such that less than 662/3% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(eh) If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders entities on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each); , and
(Bii) second, subject to Section 2.01(e), any securities proposed to be registered by for the account of the Company.
(fi) Upon written notice to each Selling ShareholderRegistering Stockholder, the Company may postpone effecting a registration pursuant to this Section 5.01 2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 60 days (which period may not be extended or renewed), if (1i) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (McLeodUSA Holdings Inc), Registration Rights Agreement (McLeodusa Inc)
Demand Registration. (a) If Subject to the conditions of this Section 2(a), if the Company shall receive receives a written request by from one or more of the CSH Shareholders Investors (any such requesting Person, a the "Selling ShareholderInitiating Investors") that the Company effect the registration file a Registration Statement under the Securities Act registering the resale of all or a portion of such Selling Shareholder's the Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly shall, (i) give written notice of such requested registration request to all Investors as soon as practicable, but in no event later than the tenth (a "Demand Registration"10th) to day following the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholdersdate of such request, and thereupon will (ii) prepare promptly and file with the SEC as soon as practicable, but in no event later than the thirtieth (30th) day following the date of such request, and thereafter use its best efforts to effectcause to become effective as soon as practicable, as expeditiously as possiblea Registration Statement registering the resale of all Registrable Securities that the Initiating Investors request to be registered and all Registrable Securities owned by any other Investor that notifies the Company in writing, within fifteen (15) days after receipt of the registration Company's notice contemplated in clause (i) above, that it intends to participate in such demand registration, which notification shall include the number of Registrable Securities sought to be included by such Investor and the intended method or methods of distribution of such Registrable Securities. The Registration Statement filed hereunder, to the extent allowable under the Securities Act (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Notes and exercise of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the approval of:
(i) the Registrable Securities which Investors participating in such demand registration and their respective counsel prior to its filing or other submission. Notwithstanding the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereofforegoing, the Company shall not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated required to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds $7,500,000. In no event will the Company be required to effect more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a demand registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if 2(a): (1) an investment banking firm of recognized national standing shall advise prior to the Company and 180th day following the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced date hereof, or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After after the Company has effected one Demand Registration by the CSH Shareholders registration pursuant to this Section 5.01 2(a), and such registration has been declared or ordered effective and remained continuously effective without interruption in accordance with the provisions of Common Stock, Section 3 hereof for the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request duration of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersPeriod (as defined in Section 3(a) below).
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (P Com Inc), Registration Rights Agreement (P Com Inc)
Demand Registration. (a) If Upon the earlier of (i) the fifth anniversary of the date of this Agreement and (ii) the six-month anniversary of the Company’s IPO, the Company shall receive a agrees that, upon the written request by of either RN Stockholder or MTVN Stockholder so long as RN Stockholder or MTVN Stockholder, as applicable, owns at least twenty-five percent (25%) of the CSH Shareholders then outstanding shares of Voting Stock (the “Initiating Holders”) (a “Demand Registration”), it will as promptly as reasonably practical (but in any event within 45 days of receipt of such requesting Person, request) prepare and file a "Selling Shareholder") that the Company effect the registration statement under the Securities Act (a “Registration Statement”, which term will include any amendments thereto and any documents incorporated by reference therein); provided that (i) the Company will not be obligated to effect (x) a Demand Registration if a Registration Statement pursuant to this Section 6.01 or Section 6.02 in which the holders of Registrable Securities had the right to include Registrable Securities was declared effective within 12 months prior to the date of the request for a Demand Registration, so long as the number of Registrable Securities which the holders of Registrable Securities requested to include in such Registration Statement was not reduced pursuant to Section 6.03 or (y) more than one Demand Registration (other than Demand Registrations taking the form of Shelf Options) for each of RN Stockholder and MTVN Stockholder (for a total of up to two Demand Registrations) under this Agreement and (ii) the Registrable Securities for which a Demand Registration has been requested will have a value (based on the average closing price per share of the Common Stock (or any successor security) for the ten trading days preceding the delivery of the Initiating Holders’ request for such Demand Registration, or, if such average trading information is not available, as determined in good faith by the Board) of not less than $10,000,000 (or, in the case of a Shelf Option, $5,000,000); provided further that no registration will be counted towards the limitation in clause (i)(y) of the previous proviso unless all Registrable Securities requested to be registered where so registered or such registration was withdrawn at the request of the Initiating Holders (other than as a portion result of a material adverse change to the Company). Each such Selling Shareholder's request for a Demand Registration by the Initiating Holders will specify the number of shares of Registrable Securities, Securities proposed to be offered for sale and specifying will also specify the intended method of disposition thereofdistribution thereof and, then following receipt of such demand, the Company shall promptly will give written notice of such requested registration Demand Registration to the holders of Registrable Securities (a "Demand Registration"other than the Initiating Holders) as soon as practicable (but in no event less than 30 days before the anticipated filing date), and upon the written request, given within 15 days after delivery of any such notice by the Company, of any such holder of Registrable Securities (other than the Initiating Holders) to include in such Demand Registration Registrable Securities (which request shall specify the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersnumber of Registrable Securities proposed to be included in such registration), the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon Company will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the cause all such Registrable Securities which to be included in such registration on the Company has been so requested to register by same terms and conditions as the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which Initiating Holders. Upon the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days of Initiating Holders holding at least ten percent (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid10%) of the Registrable Securities so then outstanding, the Demand Registration shall be effected by filing the Registration Statement on Form S-3 (if such form is available for such offering or, if such form is not available for such offering, other appropriate form) (the “Shelf Registration Statement”) which provides for the sale by the Participating Stockholders of their Registrable Securities from time to time in underwritten public offerings pursuant to Rule 415 under the Securities Act (the “Shelf Option”); provided that (i) the Initiating Holders may not elect the Shelf Option if the request thereunder is in connection with or would constitute the Company’s IPO and (ii) the Initiating Holders may not elect more than one Shelf Option within any 365 day period.
(b) The Company agrees to use its commercially reasonable efforts (i) to cause any Registration Statement to be registered; declared effective (unless it becomes effective automatically upon filing) as promptly as reasonably practicable after the filing thereof and (ii) to keep such Registration Statement effective for a period of (x) not less than 90 days or, if earlier, the period sufficient to complete the distribution of the Registrable Securities pursuant to such Registration Statement or (y) in the case of a Shelf Registration Statement, for a period ending on the first date on which all the Registrable Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement, but in no event longer than 180 days. The Company shall be deemed not to have used its commercially reasonable efforts to keep a Registration Statement effective during the requisite period if it voluntarily takes any action that would result in the Participating Stockholders not being able to offer and sell their Registrable Securities included in such offering during that period, unless such action is required by applicable Law or is pursuant to Section 6.06. The Company further agrees to supplement or make amendments to the Registration Statement as may be necessary to keep such Registration Statement effective for the period set forth in clause (ii) above, including (A) to respond to the comments of the SEC, if any, (B) as may be required by the registration form utilized by the Company for such Registration Statement or by the instructions applicable to such registration form, (C) as may be required by the Securities Act or the rules and regulations thereunder or (D) the Company as may be reasonably requested in writing by any Participating Stockholder or any Underwriter. The Company agrees, at least ten days before filing with the SEC a Registration Statement or prospectus and at least two days before filing with the SEC any amendments or supplements thereto, to furnish to the Underwriters, if any, to the Participating Stockholders, and to one counsel selected by the Participating Stockholders copies of all such documents proposed to be filed, which documents shall be subject to the review and reasonable comments of such Persons.
(c) In the event an offering of shares of Registrable Securities involves one or more Underwriters, MTVN Stockholder and RN Stockholder (provided thatthat they are Participating Stockholders in such offering) will jointly (and if only one such Stockholder is a Participating Stockholder in such offering, such Stockholder acting individually) select the lead bookrunning Underwriter and any additional Underwriters in connection with the offering, subject to the reasonable approval of the Company.
(d) Notwithstanding the foregoing provisions of this Section 5.01(d) hereof6.01, the Company shall holders of Registrable Securities may not be obligated to effect more than five Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect request a Demand Registration unless during a period commencing upon filing (or earlier, but not more than 30 days prior to such filing upon notice by the aggregate proceeds expected Company to be received from the sale holders of Registrable Securities that it so intends to file) a Registration Statement for Equity Securities of the Common Stock Company (for its own account or for any other security holder) and ending (i) 90 days after such Registration Statement is declared effective by the SEC (or becomes automatically effective) or up to 180 days in the case of an underwriting if and to the extent requested to be included in by the lead Underwriter, (ii) upon the withdrawal of such Demand RegistrationRegistration Statement or (iii) 30 days after such notice if no such Registration Statement has been filed within such 30-day period, whichever occurs first; provided that the foregoing limitation will not apply if the holders of Registrable Securities were not given the opportunity, in violation of Section 6.01(a) or 6.02, to include its Registrable Securities in the reasonable opinion of CSH exercised Registration Statement described in good faiththis Section 6.01(d); provided, equals or exceeds $7,500,000. In further, that in no event will the Company holders of Registrable Securities be required to effect restricted hereunder for more than one Demand Registration within 180 days in any four12-month period.
(be) Promptly after the expiration of the 10-day period referred The Initiating Holders will be permitted to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered rescind a Demand Registration unless at any time; provided that if the Initiating Holders rescind a Demand Registration, such revocation arose out Demand Registration will nonetheless count as a Demand Registration for purposes of the fault of the Company or determining when future Demand Registrations can be requested pursuant to this Section 6.01, unless the participating Shareholders Initiating Holders reimburse the Company for all costs expenses incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have been effected.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Stockholder Agreement, Stockholder Agreement (Realnetworks Inc)
Demand Registration. (a) If At any time from and after the Company shall receive a written date that is [*] from the date of this Agreement, the Majority Holders may request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") in writing that the Company effect the registration under the Securities 1933 Act of any or all or a portion of the Registrable Securities held by such Selling Shareholder's Registrable Securitiesrequesting Holders, and specifying which notice shall specify the intended method or methods of disposition thereofof such Registrable Securities. Except as otherwise provided herein, then the Company shall promptly give written notice of prepare and (within 90 days after such requested request has been given) file with the Securities and Exchange Commission (the “SEC”) a registration statement with respect to (a "Demand Registration"x) all Registrable Securities included in such request and (y) all Registrable Securities included in any request delivered by the Requesting Holders pursuant to the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersSection 2.1(f) (together, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders“Covered Registrable Securities”), and thereupon will thereafter use its best reasonable efforts to effect, as expeditiously as possible, effect the registration under the Securities 1933 Act of:
(i) the and applicable state securities laws of such Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the for disposition (in accordance with the intended method or methods thereof as aforesaid) of the Registrable Securities so to disposition stated in such request (which requested method of disposition may be registered; a Rule 415 Offering, provided that, subject to Section 5.01(d) hereof, that the Company shall not be obligated required to effect more than five Demand Registrations for maintain the CSH Shareholderseffectiveness of a registration statement relating to a Rule 415 Offering to the extent the securities included in such registration cease to be Registrable Securities); and provided further that the Company shall not be obligated to effect any such registration pursuant to this Section 2.1(a) (i) during the period starting with the date of filing of, and ending on the date 90 days following the effective date of, a Demand Registration unless registration statement pertaining to a public offering initiated or requested by the aggregate proceeds expected Company or any stockholder other than a Holder, (ii) if within 30 days of receipt of a written request from the Requesting Holders, the Company gives notice to the Requesting Holders of the Company’s intention to make a public offering within 90 days for the Company’s account or (iii) if the Company furnishes to the Requesting Holders a certified resolution of the Board of Directors stating that in the Board of Directors’ good faith judgment it would be materially prejudicial (a “Materially Prejudicial Condition”) to the Company for such a registration statement to be received from filed and become effective, and, if requested by the sale Requesting Holders (and subject to their entering into a customary confidentiality obligation as to such information), setting forth in reasonable detail the general reasons for such judgment. The Company shall also be able to suspend the use of, or withdraw and terminate the effectiveness of, any effective registration statement by furnishing the Holders with a certified copy of such resolution of the Common Stock requested Board of Directors as to be included a Materially Prejudicial Condition. Upon receipt of such certified copy, the Holders shall immediately discontinue use of the prospectus contained in such Demand Registrationregistration statement and, in if so directed by the reasonable opinion of CSH exercised in good faithCompany, equals or exceeds $7,500,000. In no event will the Holders shall deliver to the Company all copies, other than permanent file copies, of the prospectus covering such Registrable Securities that is current at the time of receipt of such notice. The Company shall promptly deliver to each Requesting Holder or Holders, as applicable, written notice of the non-existence of any Materially Prejudicial Condition with respect to which the Company previously furnished notice. Neither the filing nor the effectiveness of any such registration statement may be required delayed, or the use of the prospectus contained in any such registration statement suspended, for a period in excess of 90 days due to effect more than the occurrence of any particular Materially Prejudicial Condition and the Company may exercise its delay or suspension rights on only one Demand Registration within occasion in connection with any fourregistration request under Section 2.1 in any twelve-month period. If requested by the Initial Requesting Holders, the Company shall, if any registration statement shall have failed to have been filed or shall have been suspended, withdrawn or terminated because of a Materially Prejudicial Condition, promptly after such time as the Materially Prejudicial Condition no longer exists or, if earlier, at the end of the 90-day period following the occurrence of such Materially Prejudicial Condition, file the unfiled registration statement, a post-effective amendment to the suspended registration statement and/or an amended or supplemented prospectus thereto, or a new registration statement covering the Registrable Securities that were covered by such unfiled, suspended or withdrawn or terminated registration and maintain the effectiveness thereof for such time as is required under this Agreement.
(b) Promptly after the expiration of the 10-day period referred The Majority Holders may collectively exercise their rights to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting require a registration under Section 5.01(a2.1(a) mayonce, at any provided that the Majority Holders may collectively exercise their rights to require a registration under Section 2.1(a) on an [*] for each time prior to that less than all of the effective date of Covered Registrable Securities are included in the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred filed by the Company in connection with such registration, in which case such the SEC pursuant to a request shall not be considered a Demand Registrationunder Section 2.1(a) because of the operation of Section 2.1(g).
(c) The Company will pay all Registration Expenses in connection with Without limiting the last sentence of Section 2.1(a), the Holders shall not have the right to require the filing of a registration statement pursuant to this Section 2.1 while any Demand Registrationregistration statement that has been filed pursuant to this Section 2.1 has yet to become effective or within [*] following the effectiveness of any registration statement that was filed pursuant to this Section 2.1.
(d) A registration requested pursuant to this Section 5.01 2.1 shall not be deemed to have been effected unless the registration statement relating thereto (and, therefore, rights of a Requesting Holder shall be deemed not to have been exercised for purposes of paragraph (a) above) (i) has become effective under the Securities Act and (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after unless it has become effective, the offering of Registrable Securities pursuant to (ii) if after it has become effective such registration (or the use of the prospectus contained in such registration statement) is (A) interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by any Holder or (B) delayed, withdrawn, suspended or terminated and, in each case, as a result thereof, the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement (until such time as the Registrable Securities requested to be registered may be completely distributed in accordance with the plan of distribution set forth in the related registration statement) or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effectedsatisfied or waived other than because of some act or omission by any Holder.
(e) If In the event that any registration pursuant to Section 2.1(a) shall involve, in whole or in part, an underwritten offering, the Holders of a Demand Registration involves an Underwritten Public Offering majority of the Registrable Securities to be registered shall select the lead underwriter or underwriters (which selection or selections shall be subject to the approval of the Company, which approval shall not be unreasonably withheld), as well as counsel for the Holders, with respect to such registration.
(f) Upon receipt of a written request from the Initial Requesting Holders pursuant to the first sentence of Section 2.1(a), the Company shall promptly give written notice of such requested registration to all other Holders of Registrable Securities and the managing underwriter shall advise intended method or methods of disposition stated in such request. Each other Holder may, by written notice to the Company and to be delivered within [*] of the Selling Shareholders thatdelivery of the Company’s notice, request the inclusion in its view, such registration of any Registrable Securities held by such other Holder. The Company shall promptly after the expiration of such [*] period notify each Requesting Holder of (i) the identity of the other Requesting Holders and (ii) the number of shares of Registrable Securities requested to be included therein by each Requesting Holder. In the event that the Initial Requesting Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, the right of any Holder to include all or any portion of its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute all of any portion of their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form (for secondary sales by selling stockholders) with the underwriter or underwriters selected pursuant to Section 2.1(e).
(g) The Company shall have the right to cause the registration of additional equity securities for sale for the account of any person or entity that is not a Holder (including the Company and any directors, officers or employees of the Company (such additional equity securities, the “Additional Equity Securities”)) in any registration of Registrable Securities requested by the Requesting Holders; provided that if such registration is to be an underwritten registration and such Requesting Holders are advised in writing (with a copy to the Company) by a nationally recognized investment banking firm selected pursuant to paragraph (e) above that, in such firm’s good faith view, all or a part of the equity securities to be included in such registration (including any Additional Equity Securities) cannot be sold and the inclusion of all or part of the equity securities which that would otherwise be included in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the equity securities to be included in such registration, then the Company shall exclude from such registration such Additional Equity Securities or part thereof (other than Company Securities that the Company proposes to include in such registration), to the nearest extent possible on a pro rata basis, except to the extent doing so would be inconsistent with the provisions of any agreement under which any of the Additional Equity Securities are entitled to registration rights, in which case the Company shall include in such registration:
(i) first, up to the full number of any Third Party Priority Securities that are requested to be included which are not Registrable Securities) or in such registration which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis;
(ii) second, up to the inclusion full number of some or all (A) Registrable Securities held by Holders and (B) any Third Party Parity Securities that are requested to be included in such registration, in excess of the shares number of any Third Party Priority Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis (with the number of Registrable Securities owned by and Third Party Parity Securities that will be so included in such registration being determined on the Holders, in any such case, exceeds basis of the largest number of shares which can Registrable Securities that the Holders request be sold without having an adverse effect on included in such offeringregistration and the number of Third Party Parity Securities that are requested to be included in such registration);
(iii) third, including up to the price at which such shares can be sold (the "Maximum Offering Size"), full number of Company Securities that the Company will proposes to include in such registration, in excess of the priority listed belownumber of Third Party Priority Securities, Registrable Securities and Third Party Parity Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be sold without so adversely affecting such offering in the manner described above; and
(iv) fourth, up to the Maximum Offering Size:
full number of any Other Securities (Athat are not Third Party Priority Securities, Registrable Securities, Third Party Parity Securities or Company Securities) first, all Registrable Securities held by other holders of the Company’s securities entitled to registration rights that are requested to be registered by included in such registration, in excess of the parties requesting number of Third Party Priority Securities, Registrable Securities, Third Party Parity Securities and Company Securities to be sold in such Demand Registration and all offering which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above. In the event that the number of Registrable Securities requested to be included in a registration statement that will not include any Additional Equity Securities by the Requesting Holders exceeds the number which, in the good faith view of such registration by any other Holder (allocatedinvestment banking firm, if necessary for can be sold without adversely affecting the offering not to exceed price, timing, distribution or sale of securities in the Maximum Offering Sizeoffering, the number shall be allocated pro rata among such all of the Requesting Holders on the basis of the relative number of Registrable Securities so requested to be included then held by each such Requesting Holder (with any number in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing excess of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be Requesting Holder’s request reallocated among the remaining Requesting Holders in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other forma like manner).
Appears in 2 contracts
Sources: Registration Rights Agreement (Diversa Corp), Asset Sale Agreement (Diversa Corp)
Demand Registration. (a) If at any time after 180 days following the completion of the First Public Offering, the Company shall receive a written request by from a Shareholder or group of Shareholders, in each case holding at least 40% of the CSH Shareholders Registrable Securities (any such the requesting PersonShareholder(s) shall be referred to herein as the “Initial Requesting Shareholders”), a "Selling Shareholder") that the Company effect the registration under the Securities Act of all or a any portion of such Selling Initial Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice (a “Demand Notice”) of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) to the ▇▇▇▇▇▇▇▇▇▇▇ other Shareholders, which notice shall be given not later than five Business Days prior to the ▇▇▇▇▇ anticipated filing date of the registration statement relating to such Demand Registration. Such other Shareholders and may, upon notice received by the ▇▇▇▇▇▇▇▇ ShareholdersCompany no later than two Business Days after the date of notice of a Demand Registration, and thereupon will use its best efforts to effect, as expeditiously as possible, request that the Company also effect the registration under the Securities Act of:
(i) the of all or any portion of such other Shareholder’s Registrable Securities which the Company has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all such other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such requesting Shareholders, together with the Selling Initial Requesting Shareholder(s), shall be referred to herein as the “Requesting Shareholders”). Thereafter, subject to the restrictions in Section 2.01(e), the "Holders") has Company shall use commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities for which the Requesting Shareholders have requested the Company to register by written request received by the Company within 10 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all registration under this Section 2.01 to the extent necessary to permit the disposition of the Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid) ), provided that the Company shall be permitted to effect the registration under the Securities Act of any securities other than the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than five Demand Registrations (including for the CSH Shareholdersbenefit of Persons not party to this Agreement) as part of any Demand Registration; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,00020,000,000 or such lesser amount that constitutes all of the Requesting Shareholder’s Registrable Securities (provided that such lesser amount is at least $10,000,000). In no event will shall the Company be required to effect (i) more than one Demand Registration hereunder within any foursix-month periodperiod or (ii) any Demand Registration if, at the time of such request, four or more Demand Registrations and Underwritten Takedowns (as defined below) have previously been effected ((i) and (ii) hereinafter collectively referred to as the “Demand Registration Limitations”).
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registrationa Demand Registration, revoke such request, without liability to any of a Shareholder may withdraw from the other Holders, related registration by providing a written notice to the Company. If sufficient Registrable Securities are so withdrawn such that the number of Registrable Securities to be included in such Demand Registration does not meet the applicable threshold required for such Demand Registration pursuant to Section 2.01(a), the Company revoking may cease all efforts to effect such requestDemand Registration, in which case and upon the Company ceasing all efforts to effect registration, such Demand Registration shall be deemed revoked. A request, so revoked, shall be considered to be a Demand Registration for purposes of the Demand Registration Limitations unless (i) such revocation arose out of the fault of the Company or unless (ii) the participating Requesting Shareholders reimburse the Company for all costs Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) incurred by prior to such revocation, pro rata among such Requesting Shareholders on the Company basis of the number of Registrable Securities of such Requesting Shareholders that were to be included in connection with such registration, in which case such request shall not be considered a revoked Demand Registration.
(c) The Company will shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such registration is effected, unless the Requesting Shareholders elect to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred (other than as provided in Section 2.01(b)) unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 30 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of Registrable Securities pursuant to Requesting Shareholders included in such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court such registration will be deemed not to have actually been effectedsold thereunder).
(e) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Shareholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder all Requesting Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each such Shareholder; provided, that Warrant Shares shall be treated as "Registrable Securities" and holders of Warrant Shares shall be treated as "Shareholders" for the purpose of this Section 2.01(e)(i) only); and
(Bii) second, any securities proposed to be registered by the CompanyCompany (including for the benefit of any other Persons not party to this Agreement).
(f) Upon written notice to each Selling Shareholderthe Requesting Shareholders, the Company may postpone effecting a registration pursuant to this Section 5.01 Demand Registration on one occasion two occasions during any period of six twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which in the aggregate in any period may not be extended or renewed)of twelve consecutive months, if (1i) an investment banking firm the Board of recognized national standing shall advise Directors of the Company and the Selling Shareholders reasonably determines in writing good faith that effecting the registration would materially and adversely affect an offering of securities of such the Company the preparation of which had then been commenced commenced, or (2ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Board of Directors of the Company believes, in its reasonable judgment, reasonably believes would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Registration Rights Agreement (Novo Nordisk a S), Registration Rights Agreement (Affimed N.V.)
Demand Registration. (a) If At any time following the Company shall receive Initial Public Offering, any Stockholder may give a written request by the CSH Shareholders (any such requesting Person, a "Selling Shareholder") that to the Company to effect the registration under the Securities Act (other than pursuant to a registration statement on Form S-4 or S-8 or any similar or successor form under the Securities Act) of all or a any portion of such Selling Shareholder's Requesting Stockholder’s Registrable Securities, which written request shall specify the number of Registrable Securities to be registered and specifying the intended method of disposition thereof. Such registration may be for the offering of the Stockholder’s Registrable Securities on a delayed or continuous basis under Rule 415 under the Securities Act. At any time the Company is eligible for use of Form S-3ASR, then such registration shall occur on such form. Upon the receipt of such written request, the Company shall promptly give written notice (via facsimile or electronic transmission) of such requested registration (each such registration shall be referred to herein as a "“Demand Registration"”) at least 10 Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholdersanticipated filing date of the Registration Statement relating to such Demand Registration to any other Stockholders. Thereafter, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will Company shall use its best commercially reasonable efforts to effect, as expeditiously soon as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Stockholder has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; andregistration under this Section 2.01;
(ii) all other Registrable Securities of the same type class or series as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholder that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such Shareholders, together with the Selling Shareholders, the "Holders") has other Stockholder have requested the Company to register by written request received by the Company within 10 days Business Days after such Stockholders receive the Company’s notice of the Demand Registration; and
(one of which shall iii) any Company Securities to be a Business Day) after the receipt by such Holders of such written notice given offered or sold by the Company, ; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaiddescribed in the Requesting Stockholder’s written request) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof2.01(d), the Company shall not be obligated to effect more than five (1) any such Demand Registrations for Registration (i) within the CSH Shareholders; and provided further that Specified Period after the effective date of any other registration statement of the Company shall not be obligated to effect in connection with which Stockholders were given Piggyback Registration rights (other than a registration statement filed in connection with an employee benefit plan or business combination transaction or a registration statement on Form S-4 or S-8) or (ii) in accordance with Section 2.01(f), (2) any Demand Registration unless if the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration is less than $25,000,000 (other than with respect to the registration of the exchange of the Exchange Securities for shares of Class A Common Stock pursuant to the Exchange Agreement) or (3) any Demand Registration requested by a Stockholder other than the MacAndrews Stockholders if the Company has completed three Demand Registrations after the date hereof as a result of requests by Stockholders other than MacAndrews Stockholders pursuant to this Section 2.01(a). A Requesting Stockholder may require any Demand Registration that involves a Public Offering of at least $25,000,000 to be conducted as an underwritten offering. Notwithstanding the foregoing, a Requesting Stockholder may request that a Demand Registration take the form of a primary offering by the Company of Class A Common Stock, whose net proceeds shall be used by the Company, pursuant to the Exchange Agreement, to pay cash in exchange for the Exchange Securities that underlie the Registrable Securities proposed to be registered pursuant to such Demand Registration, in which case, (i) the reasonable opinion Demand Registration shall cover the primary sale of CSH exercised the number of shares of Class A Common Stock requested by the Requesting Stockholder, (ii) the Requesting Holder shall exercise its right, pursuant to Section 2.02 of the Exchange Agreement, to exchange the number of Exchange Securities that is equal to the number of shares of Class A Common Stock sold in good faithsuch Public Offering, equals or exceeds $7,500,000contingent on (among other things) the closing of such Public Offering and receipt by the Company of net proceeds therefrom, (iii) upon receipt of the net proceeds from such Public Offering, the Company shall elect, pursuant to Section 2.01 of the Exchange Agreement, to exchange such net proceeds for the number of Exchange Securities equal to the number of shares of Class A Common Stock sold pursuant to such Public Offering and (iv) except where the context otherwise requires, references to “Registrable Securities” with respect to such Demand Registration shall be to such shares of Class A Common Stock requested to be offered in such Pubic Offering. In no event will addition, to the Company be required to effect more than one extent requested by a Stockholder and agreed by the MacAndrews Stockholders, such Stockholder may request that the Demand Registration within any four-month periodcover the exchange of the Exchange Securities for shares of Class A Common Stock pursuant to the Exchange Agreement instead of the resale of the Registrable Securities.
(b) Promptly after the expiration of the 10-day 10 Business Day period referred to in Section 5.01(a)(ii) hereof2.01(a)(ii), the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included thereinin the Demand Registration. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement Registration Statement relating to such registrationDemand Registration, the Requesting Stockholder may upon notice to the Company, revoke such requestrequest in whole or in part with respect to the number of shares of Registrable Securities requested to be included in such Registration Statement, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand RegistrationRegistering Stockholders.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have occurred or have been effected completed for purposes of Section 2.01(a):
(i) unless the registration statement Registration Statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained continuously effective for a period of at least (x) 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been soldsold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.04(a); provided that such Registration Statement shall not be considered a Demand Registration if, within 180 days after it has become such Registration Statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(e) such that less than 66 2/3% of the Registrable Securities of the Requesting Stockholder sought to be included in such registration will be deemed not to have been effectedare included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the lead managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholder that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which that the Company proposes to be included which that are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an a material and adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration Requesting Stockholder and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, to give first priority to the inclusion of the Registrable Securities of the Requesting Stockholder and, thereafter, pro rata among such Holders the remaining Registering Stockholders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registrationregistration by each such Registering Stockholder); and;
(Bii) second, any securities proposed to be registered by the Company; and
(iii) third, any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(f) Upon written notice Notwithstanding anything to each Selling Shareholderthe contrary contained in this Agreement, but subject to the limitation set forth in the next succeeding paragraph, the Company may postpone effecting shall be entitled to suspend its obligation to file (but not the preparation of) any Registration Statement in connection with a registration Demand Registration and any Shelf Registration, file any amendment to such a Registration Statement, furnish any supplement or amendment to a prospectus included in such a Registration Statement, make any other filing with the SEC, cause such a Registration Statement or other filing with the SEC to become or remain effective or take any similar action (collectively, “Registration Actions”) upon (i) the issuance by the SEC of a stop order suspending the effectiveness of any such Registration Statement or the initiation of proceedings with respect to such a Registration Statement under Section 8(d) or 8(e) of the Securities Act, (ii) the Board’s determination, in its good faith judgment, that any such Registration Action should not be taken because it would reasonably be expected to materially interfere with or require the public disclosure of any material corporate development or plan, including any material financing, securities offering, acquisition, disposition, corporate reorganization or merger or other transaction involving the Company or any of its Subsidiaries or (iii) the Company possessing material non-public information the disclosure of which the Board determines, in its good faith judgment, would reasonably be expected to not be in the best interests of the Company. Upon the occurrence of any of the conditions described in (i), (ii) or (iii) above, the Company shall give prompt notice of such suspension (and whether such action is being taken pursuant to (i), (ii) or (iii) above) (a “Suspension Notice”) to the Stockholders. Upon the termination of such condition, the Company shall give prompt notice thereof to the Stockholders and shall promptly proceed with all Registration Actions that were suspended pursuant to this Section 5.01 paragraph. The Company may only suspend Registration Actions pursuant to the preceding paragraph on one occasion two occasions during any one-year period of six consecutive months for a reasonable time specified in the notice Suspension Notice but not exceeding an aggregate of 90 days (which period may not be extended or renewed) (each such occasion, a “Suspension Period”). Each Suspension Period shall be deemed to begin on the date the relevant Suspension Notice is given to the Stockholders and shall be deemed to end on the earlier to occur of (i) the date on which the Company gives the Stockholders a notice that the Suspension Period has terminated and (ii) the date on which the number of days during which a Suspension Period has been in effect exceeds the 90-day period. If the filing of any Demand Registration is suspended pursuant to this Section 2.01(f), if (1) an investment banking firm of recognized national standing shall advise once the Suspension Period ends the Requesting Stockholder may request a new Demand Registration. Notwithstanding anything to the contrary in this Agreement, the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would shall not be in breach of, or failed to comply with, any obligation under this Agreement where the best interests Company acts or omits to take any action in order to comply with applicable law, any interpretation of the Companystaff of the SEC or any order or decree of any court or governmental agency.
(g) After The Company shall have no obligation to file a Registration Statement under this Section 2.01 or Section 2.02 or proceed with Registration Actions related thereto during any time such filing or Registration Actions are prohibited by any applicable underwriting or lock-up agreement to which the Company has effected one Demand Registration by is a party relating to the CSH Shareholders Initial Public Offering or an offering pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersStatement.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Investor Rights Agreement (vTv Therapeutics Inc.), Investor Rights Agreement (vTv Therapeutics Inc.)
Demand Registration. (a) If the Company shall receive a written request by from ▇▇▇ Equity (the CSH Shareholders (any such requesting Person, a "Selling Shareholder"“Requesting Stockholder”) that the Company effect the registration under the Securities Act of all or a any portion of such Selling Shareholder's the Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (each such request shall be referred to herein as a "“Demand Registration"”) at least fifteen (15) Business Days prior to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, anticipated filing date of the ▇▇▇▇▇ Shareholders and registration statement relating to such Demand Registration to the ▇▇▇▇▇▇▇▇ Shareholders, Additional Stockholders and thereupon will shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Stockholder and the other holders have has been so requested to register by the Selling Shareholdersregistration under this Section 5.01, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Shareholders relates which Requesting Stockholder that any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder Stockholders with rights to request registration under Section 5.02 (all such ShareholdersStockholders, together with the Selling ShareholdersRequesting Stockholder, the "Holders"“Registering Stockholders”) has have requested the Company to register by written request received by the Company within 10 days ten (one of which shall be a 10) Business Day) Days after the receipt by such Holders of such written notice given by Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect (x) more than five ten (10) Demand Registrations for the CSH Shareholders; and provided further that the Company shall not be obligated to effect a Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, equals or exceeds Registration are at least (A) $7,500,000. In no event will the Company be required to effect more than one 50 million if such Demand Registration within would constitute the Initial Public Offering, or (B) $10 million in any four-month periodDemand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10-day ) Business Day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the Holders to be included in the Demand Registration identities of the other Holders Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholder may revoke such request, without liability to any of the other HoldersRegistering Stockholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will shall be liable for and pay all Registration Expenses in connection with any each Demand Registration, regardless of whether such Registration is effected.
(d) A registration requested pursuant to this Section 5.01 Demand Registration shall not be deemed to have been effected occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registrable Securities registered thereunder Registering Stockholders included in such registration have actually been sold; sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, within 180 days after it has become such registration statement becomes effective, the offering of Registrable Securities pursuant to (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than seventy-five percent (75%) of the Registrable Securities included in such registration will be deemed not to statement have been effectedsold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than fifty percent (50%) of the Registrable Securities of the Requesting Stockholder sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten a Public Offering and the managing underwriter shall advise advises the Company and the Selling Shareholders Requesting Stockholder that, in its view, (i) the number of shares of Registrable Company Securities requested that the Registering Stockholder and the Company propose to be included include in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Ai) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders entities on the basis of the relative number of Registrable Securities so requested to be included in such registrationregistration by each); and
(Bii) second, any securities all Registrable Securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any such Demand Registration by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by the Company to be effected by the filing of a registration statement on form S-3 (or any successor or similar short-form registration statement) shall be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise the Company in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form.
Appears in 2 contracts
Sources: Stockholders’ Agreement (Papa Murphy's Holdings, Inc.), Stockholders’ Agreement (Papa Murphy's Holdings, Inc.)
Demand Registration. (a) 2.1.1 If at any time and from time to time on or after the date hereof, the Company shall receive a written request by from one or more Holders (such Holders, the CSH Shareholders (any such requesting Person, a "Selling Shareholder"“Requesting Shareholders”) that the Company Company, effect the a registration under the Securities Act of all or a any portion of such Selling the Requesting Shareholder's ’s Registrable Securities, and specifying the intended method of disposition thereof, then including whether to be conducted via an underwritten offering (each such request shall be referred to herein as a “Demand Registration”), the Company shall promptly give written notice of such requested registration (a "Demand Registration") to the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, the ▇▇▇▇▇ Shareholders and the ▇▇▇▇▇▇▇▇ Shareholders, and thereupon will use its reasonable best efforts to effect, as expeditiously as possible, and in no event later than 45 Business Days after the registration under receipt of such request, the Securities Act of:
filing of a Registration Statement and the effectiveness of the Demand Registration, subject to the restrictions set forth in this ARTICLE II. The Company shall give reasonably prompt notice of a Demand Registration (iand in no event later than 15 Business Days or 5 Business Days in the case of a Bought Deal prior to the anticipated filing date of the Registration Statement relating to such Demand Registration) to the Registrable Securities which the Company has been so requested other Holders with respect to register by the Selling Shareholders, then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same type class as that those requested to which the request be registered by the Selling Requesting Shareholders relates which any ▇▇▇▇▇▇▇▇▇▇▇ Shareholder, any ▇▇▇▇▇ Shareholder or any Servidio Shareholder (all such ShareholdersHolders, together with the Selling Requesting Shareholders, and any other Holders participating in a Demand Registration or Piggyback Registration, the "Holders"“Registering Shareholders”) has requested that such Holders have the right to request the Company to register by written request received by the Company within 10 days (one Business Days, or 2 Business Days in the case of which shall be a Business Day) Bought Deal, after the receipt by such Holders date of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) ’s notice of the Registrable Securities so to be registered; provided thatDemand Registration, subject to Section 5.01(d) hereof, and the Company shall not use reasonable best efforts to include all Registrable Securities requested to be obligated to effect more than five Demand Registrations for registered by the CSH Shareholders; and provided further that Registering Shareholders in such Registration Statement. Notwithstanding the foregoing, the Company shall not be obligated to effect a Demand Registration (i) unless the aggregate proceeds expected to be received from the sale of the Common Stock Registrable Securities requested to be included in such Demand Registration, in the reasonable opinion of CSH exercised in good faith, Registration equals or exceeds $7,500,000. In no event will 30,000,000 and (ii) if the Company be required to effect more than one shall have effected a Demand Registration in which Holders had the opportunity to sell Registrable Securities within any fourthe three-month periodperiod prior to receipt of the Demand Registration.
(b) Promptly after the expiration of the 10-day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Shareholders requesting a registration under Section 5.01(a) may, at 2.1.2 At any time prior to the effective date Public Offering Launch of a Demand Registration, the registration statement relating to such registration, Requesting Shareholders may revoke such request, without liability to any of the other HoldersRegistering Shareholders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, .
2.1.3 The Company shall be considered a Demand Registration unless such revocation arose out of the fault of the Company or unless the participating Shareholders reimburse the Company liable for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will and pay all Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not be deemed to have been effected unless the registration statement relating thereto , regardless of whether (i) has become effective under the Securities Act and such Demand Registration is completed or (ii) all of the Registrable Securities registered thereunder have been sold; provided that if, within 180 days after it has become effective, the offering of a Requesting Shareholder sells Registrable Securities pursuant to such registration Demand Registration.
2.1.4 A Demand Registration shall be deemed not to have occurred:
(a) unless the Public Offering Pricing has been completed and a final Prospectus or Shelf Prospectus Supplement relating to the applicable Registration Statement containing pricing information has been filed with the Commission; provided that a Demand Registration shall be deemed not to have occurred if either (1) such Registration Statement is interfered with by any cease trade or stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or court or (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(b) if the Maximum Offering Size is reduced in accordance with subsection 2.1.5 such that less than 75% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration will be deemed not to have been effectedare included.
(e) 2.1.5 If a Demand Registration involves an Underwritten underwritten Public Offering and the managing underwriter shall underwriters advise the Company and the Selling Registering Shareholders that, in its their view, (i) the number of shares amount of Registrable Securities requested to be included in such registration Demand Registration (including any securities which that the Company proposes to be included which are not Registrable Securitiesinclude) or (ii) exceeds the inclusion of some or all of the shares largest amount of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which that can be sold without having an adverse effect on such offering, including the price at which such shares Registrable Securities can be sold (the "“Maximum Offering Size"”), the Company will shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(Aa) first, all Registrable Securities requested to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders Persons on the basis of the relative number of Registrable Securities so requested to be included in beneficially owned by such registrationRegistering Shareholders); and
(Bb) second, any securities proposed to be registered by any other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) Upon written notice to each Selling Shareholder, the 2.1.6 The Company may postpone effecting a registration pursuant to this Section 5.01 Demand Registration on one occasion during any period of six twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 60 days (which period may not be extended or renewed), if (1) an investment banking firm the Company provides a certificate signed by the principal executive officer of recognized national standing shall advise the Company stating that in the good faith judgement of the Board that it would be seriously detrimental to the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected one Demand Registration by the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders, upon request of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders owning a majority of the Shares acquired by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders on the Closing Date may request that the Company register Common Stock which are Registrable Securities then owned by such ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. In no event will the Company be required to effect more than two such Demand Registrations by the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders. The other provisions of this Article 5 applicable to Demand Registrations requested by the CSH Shareholders shall apply, mutatis mutandis, to any shareholders for such Demand Registration by to be effected at such time. It is agreed that the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders.
(h) If any registration requested pursuant to this Section 5.01 which is proposed by existence or anticipation of a material acquisition or financing activity will be sufficient reason for the Company to postpone a Demand Registration.
2.1.7 At any time that Holders may request a Demand Registration, upon the request of one or more Holders that satisfy the Registration Requirements, the Company shall use its reasonable best efforts to file a Registration Statement for a Shelf Registration with respect to the Registrable Securities and to cause such Shelf Registration to become effective as soon as practicable thereafter. Any request for the Company to prepare and file a Shelf Prospectus Supplement pursuant to a Shelf Registration in any underwritten Public Offering shall be effected by deemed to be a Demand Registration subject to the provisions of subsection 2.1.1; provided, that for purposes of such Shelf Prospectus Supplement, the reference to 45 business days in subsection 2.1.1 shall be deemed to be 25 business days; provided, further that none of (x) the filing of a registration statement on form S-3 Shelf Prospectus or (or y) the filing of Shelf Prospectus Supplement that does not relate to an underwritten Public Offering and is only for the purpose of updating a Shelf Prospectus with the identities of any successor or similar short-form registration statement) selling shareholders, the amounts of securities to be sold and any related information required by the applicable Registration Statement, shall constitute a Demand Registration subject to the provisions of subsection 2.1.1; provided, further, that no Holder may request a Shelf Registration pursuant to this subsection 2.1.7 if such Holder’s Registrable Securities may, at the time of such request, be in connection with an Underwritten Public Offering, and if the managing underwriter shall advise resold pursuant to a Registration Statement previously filed by the Company in writing that, in its opinion, and declared effective by the use Commission. The Company shall give notice of another form of registration statement is of material importance any Shelf Registration pursuant to the success of such proposed offering, then such registration shall be effected on such other formprocedures in subsection 2.1.1.
Appears in 2 contracts
Sources: Registration Rights and Lock Up Agreement (D-Wave Quantum Inc.), Registration Rights and Lock Up Agreement (DPCM Capital, Inc.)