Demand Registration. (i) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice. (ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”). (iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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. (iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights. (v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person. (vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 3 contracts
Sources: Registration Rights Agreement (Triangle Petroleum Corp), Registration Rights Agreement (NGP Natural Resources X, L.P.), Stock Purchase Agreement (Triangle Petroleum Corp)
Demand Registration. In addition to the registration obligations of the Company set forth in Section 2.2 herein, the following provisions shall apply:
(ia) Any Holder Subject to Section 2.3(i), upon the written request of the Majority Holders, requesting that holds any the Company effect the registration under the Securities Act of all or part of such Designated Holders’ Registrable Securities shall have and specifying the option and right, exercisable by delivering a written notice to Triangle intended method of disposition thereof (a the “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall Company will promptly give written notice of such Demand Notice requested registration to all Holders andDesignated Holders, and thereupon the Company will use its reasonable best efforts to file with the SEC as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of following the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included (but in such Demand Registration as promptly as practicable as directed by no event later than the Initiating Holder in accordance with the terms and conditions of date that is 90 days after the Demand Notice and Notice) a Registration Statement. The Company shall use all commercially its reasonable best efforts to cause such Registration Statement to become be declared effective under by the Securities Act and remain effective under SEC within 90 days after the Securities Act until all initial filing of the Registration Statement. The Company shall include in such Registration Statement:
(i) the Registrable Securities covered which the Company has been so requested to be registered by such Registration Statement Designated Holders for disposition in accordance with the intended method of disposition stated in such request;
(ii) all other Registrable Securities the holders of which shall have been sold made a written request to the Company for registration thereof within 30 days after the giving of such written notice by the Company (which request shall specify the “Effectiveness Period”intended method of disposition of such Registrable Securities).; and
(iii) Subject 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 other limitations extent 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, that, the provisions of this Section 2.3 shall not require the Company to effect more than two registrations of Registrable Securities.
(b) Notwithstanding anything to the contrary contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle Company shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period pursuant to this Section 2.3 within 180 days following the effective date of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (filed by the Company in accordance with Sections 2.2, 2.3 or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or 2.4 for the account of any other Person; provided that another Designated Holder of Registrable Securities if the managing underwriter, if any, for Designated Holders were afforded the Underwritten Offering determines that the type or number of Triangle Securities proposed opportunity to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of include the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personregistration.
(vic) Subject to the limitations contained in The registrations under this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 shall be effected pursuant to an Automatic Shelf Registration Statement, which Section 2.3 shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to Triangle); provided, however, that if at any time a an appropriate Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of permits the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 disposition of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofspecified by the Majority Holders in their request for registration. The Company agrees to include in any such Registration Statement all information which Designated Holders of Registrable Securities being registered shall reasonably request to effect the registration.
(d) A registration requested pursuant to this Section 2.3 shall not be deemed to have been effected (i) unless a Registration Statement with respect thereto has become effective; provided, that a Registration Statement which does not become effective 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 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) if, after it has become effective, 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 Statement’s effectiveness, or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration 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 Registration 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. (i) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its Following receipt of a Demand Notice, a WKSI, the Demand Registration Company shall (subject to any rights set forth in the Existing Stockholders’ Agreement):
(i) give written notice of such request for any offering and selling registration to all Holders of Registrable Securities shall within ten (10) days after receipt of a Demand Notice;
(ii) cause to be effected pursuant to an Automatic filed, as soon as practicable, but in any event within, for the filing of a Shelf Registration Statement, which shall thirty (30) days of the date of delivery of the Demand Notice, a Registration Statement covering such Registrable Securities that the Company has been so requested to register by the Requesting Holders and other Holders of Registrable Securities who make a request to the Company, 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 on Form S-3 or any equivalent or successor form registered, providing for the registration under the Securities Act (if available to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the such Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 extent necessary to apply for listing or to list permit 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 disposition of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofspecified in such Demand Notice;
(iii) use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC as soon as practicable thereafter, but in no event later than thirty (30) days or, if a Registration Statement is reviewed by the staff of the SEC, the Company shall use its commercially reasonable efforts to have such Registration Statement declared effected not later than sixty (60) days following the date of initial filing thereof with the SEC; and
(iv) if the Company shall have previously effected a Demand Registration pursuant to this Section 1.2, the Company shall not be 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.
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. (ia) Any Holder At any time and from time to time on or after the date that holds any Registrable Securities shall have is not less than 180 days after the option and rightEffective Date, exercisable by delivering a upon the written notice to Triangle request (a “Demand Notice,” ”) of the Required Investors requesting that the Company effect the registration under the Securities Act of all or a portion of the Registrable Securities of such Investors (“Requesting Investors”), the Company shall promptly give 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 anticipated filing date of the Registration Statement relating to such Demand Registration to the other Investors and to the Holder holders of Other Registrable Securities and thereupon shall use its commercially reasonable efforts to effect, as expeditiously as possible, the registration under the Securities Act of (i) all Registrable Securities for which the Requesting Investors have requested registration under this Section 2(a), (ii) subject to the restrictions of Sections 2(e) and 3(d), all other Registrable Securities that delivers any other Investors (all such a Demand NoticeInvestors, the “Initiating HolderRegistering Investors”), ) request the Company to require Triangle to, register pursuant to Section 3(a) by request received by the terms Company within 5 Business Days after the Company gives notice of the Demand Registration, and (iii) subject to the limitations contained in this Agreementrestrictions of Sections 2(e) and 3(d), prepare and file with all Other Registrable Securities that any holders of Other Registrable Securities (all such holders, the Commission a Registration Statement registering “Other Registering Holders”) request the offering and sale Company to register pursuant to Section 3(a) by request received by the Company within 5 Business Days after the Company gives notice of the number and type of Registrable Securities on Demand Registration, all to the terms and conditions specified in extent necessary to permit the Demand Notice disposition (in accordance with the intended timing and method or methods of distribution disposition 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(iiaforesaid) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given so registered, provided that, the Company shall not be obligated to Triangle within three days of receipt of such notice effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) Registrable Securities requested to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Requesting Investors equals or exceeds $15,000,000. Each such Demand Notice will specify the number of Registrable Securities proposed to be offered for sale in aggregate and use all commercially reasonable efforts 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 cause 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 to become is declared effective under by the Securities Act and remain effective under SEC (or automatically becomes effective), (ii) upon the Securities Act until all Registrable Securities covered by withdrawal of such Registration Statement have 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 shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(d) The Requesting Investors are permitted to rescind a Demand Registration at any time. So long as the Investors theretofore participating in such rescinded Demand Registration reimburse the Company for all expenses (including reasonable fees and disbursements of counsel) incurred by the Company in connection with such rescinded Demand Registration, a rescinded Demand Registration will not count as a Demand Registration for purposes of determining when future Demand Registrations can be requested by the Required Investors pursuant to this Section 2 and any Registration Statement related to such rescinded Demand Registration shall not affect when another Demand Registration may be requested by the Required Investors pursuant to the terms of this Agreement.
(e) If a Demand Registration involves an Underwritten Offering and any of the lead Underwriters advises the Company that, in its view, the total number or dollar amount of Registrable Securities and Other Registrable Securities requested to be included in the registration exceeds the number or dollar amount of securities that can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the “Effectiveness PeriodMaximum Offering Size”).
(iii) Subject , the Company will include the securities in the registration, in the following order of priority, up to the other limitations contained in this AgreementMaximum Offering Size: (i) first, Triangle is all Registrable Securities requested to be registered by the Registering Investors allocated, if necessary for the offering not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month periodexceed the Maximum Offering Size, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all pro rata among such Registering Investors on the basis of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the relative number and type of Registrable Securities on the terms and conditions specified so requested to be included in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”)by each Registering Investor; provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during second, all Other Registrable Securities requested to be included in such registration by any Blackout Period contemplated 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 Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, each Other Registering Holder; and (iii) during third, any Blackout Period contemplated securities proposed to be registered by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account the Company or for the account of any other Person; provided that if third party. All persons whose securities are included in the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect Demand Registration must sell their securities on the price, timing or distribution of same terms and conditions as apply to the Registrable Securities proposed to be included in such offering, the Registrable Securities to be securities being sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other PersonRequesting Investors.
(vif) Subject Upon notice to the limitations contained Requesting Investors, the Company may postpone effecting a registration pursuant to this Section 2 on up to two occasions during any period of 12 consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate, if the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company reasonably believes would not be in the best interests of the Company.
(g) 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 Required Investors pursuant to this Agreement, Triangle shall effect any Demand Section 2 if (i) the Registration on Form S-3 (except if Triangle is not then eligible Statement relating to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to Offering does not become effective within 90 calendar days after the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement date such Registration Statement as may be necessary 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 conditions to closing specified in order to enable such offering to take place.
(vii) Without limiting Section 3, any underwriting agreement or purchase agreement entered into in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely Offering are not satisfied 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 a default 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 breach thereunder 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 thereofCompany.
Appears in 3 contracts
Sources: Registration Rights Agreement (Kadmon Holdings, Inc.), Registration Rights Agreement (Kadmon Holdings, LLC), Exchange Agreement (Kadmon Holdings, LLC)
Demand Registration. (ia) Any Holder 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 holds any Registrable Securities shall have are independent under the option 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 rightSection 2.3(j), exercisable by delivering a upon written notice to Triangle (a “Demand Notice,” and ”) by Holders owning a majority of the Holder that delivers such a Demand Noticethen outstanding Registrable Securities, the “Initiating Holder”), Company shall use its commercially reasonable efforts to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission SEC a Registration Statement registering covering the offering and sale or distribution by the Holders by way of the number and type of Registrable Securities on the terms and conditions specified underwritten offering, block sale or any other distribution plan (other than pursuant to a merger, exchange offer or similar transaction) designated in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the such Demand Notice, which may include but excluding any plan of distribution for offers and sales on a delayed or continuous basis pursuant to Rule 415 (that would require a “Demand Registration”). The Demand Notice must set forth the number shelf” registration, of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request requested to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included registered in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration registration shall be effected on another appropriate form and shall provide for the registration of such purpose pursuant Registrable Securities for resale by such Holders) in accordance with the foregoing (a “Demand Registration”) on or prior to the Securities Actdate that is thirty (30) days from the date of such Demand Notice (such date of actual filing, the “Filing Date”), and shall use its commercially reasonable efforts to cause such Demand Registration to be declared effective by the SEC as promptly as practical after the filing thereof.
(b) Once a Demand Registration is declared effective, the Company shall, subject to Section 2.1(f) and if Triangle becomesSection 2.3(j), and is at 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 its receipt 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 Notice, a WKSIRegistration 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 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 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 available required by the rules, regulations or instructions applicable to Triangle)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 provision of this Section 2.1, if at any time the managing underwriter or underwriters of a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an proposed underwritten offering of all or part of the Registrable Securities advise the Board that in its or their good faith opinion the number of Registrable Securities requested to be included on such Registration Statement, Triangle will amend or supplement in such Registration Statement as and all other securities proposed to be sold in the offering contemplated thereby exceeds the number which can be sold in such underwritten offering without adversely affecting the success of such offering, in light of market conditions, the Registrable Securities and such other securities to be included in such underwritten Registration Statement shall be allocated, (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 securities that each of 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 (pro rata based upon the number of securities that each of them shall have so requested to be included in such offering) that, in the opinion of the managing underwriter or underwriters can be so sold. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company 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 necessary in order given at least two Business Days prior to enable effectiveness of the applicable Registration Statement). Any securities excluded or withdrawn from such offering to take placeunderwriting shall be withdrawn from such registration.
(viif) Without limiting Section 3, in connection with any Demand Registration The Company shall not be required to effect a registration pursuant to and in accordance with this Section 2(a2.1:
(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”), Triangle shall, provided that a registration will count for this purpose only if (A) promptly prepare and file or cause all Registrable Securities requested 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 registered are registered and (B) do such 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, at the time of such withdrawal, the Holders have learned of material adverse information concerning the Company not known to the 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);
(ii) if the Company has effected a registration pursuant to this Section 2.1 within the preceding six (6) months, and such registration has been declared or ordered effective or withdrawn at the request of a majority in interest of the Holders initiating such registration (other than a withdrawal because, at the time of such withdrawal, the Holders have learned of material adverse information concerning the Company not known to the 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 and other than a withdrawal in light of market conditions that Holders have reasonably determined are likely to adversely affect 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 process in effecting such registration, unless the Company is already subject to service in such jurisdiction and all other acts and things that except as may be reasonably necessary or appropriate or reasonably requested by required under 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 thereofAct.
Appears in 2 contracts
Sources: Investor Rights Agreement (Martha Stewart Living Omnimedia Inc), Securities Purchase Agreement (Martha Stewart Living Omnimedia Inc)
Demand Registration. (ia) Any At any time during the period beginning on the Demand Rights Commencement Date and ending at the Registration Rights Termination Time, the Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering may deliver a written notice request to Triangle the Company (a the “Demand Registration Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), ) to require Triangle 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 “Demand Registration Statement”) for the number and type registration of Registrable Securities on the terms to be offered 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 sold pursuant to Rule 415 an Underwritten Offering (a the “Demand Registration”). The Demand Registration Notice must set forth shall specify the aggregate number of Registrable Securities that requested to the Initiating Holder intends registered pursuant to include in such the Demand Registration. Notwithstanding anything Subject to the contrary hereinlimitations set forth in Section 2.6(a), in no event the Company shall Triangle be required use commercially reasonable efforts to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based file as soon as reasonably practicable with the SEC (and, unless otherwise agreed to by the Holder, on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five or before 20 Business Days of the after its receipt of the Demand NoticeRegistration Notice or, Triangle shall give written notice if financial statements required to be included in such a filing are not reasonably available on or before the expiration of such Demand Notice to all Holders andperiod of 20 Business Days, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become or be declared effective under the Securities Act as soon as reasonably practicable, a Demand Registration Statement as will permit the sale and remain effective under distribution of all or such portion of the Securities Act until all Holder’s Registrable Securities covered by such as are specified in the Demand Registration Notice. The Company shall promptly notify the Holder of the date on which the Demand Registration Statement have been sold (the “Effectiveness Period”)becomes or is declared effective.
(iiib) Subject The Holder shall have the right to cause the other limitations contained in this Agreement, Triangle is not obligated hereunder Company to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent one Demand Registration pursuant to a Section 2.2(a). A Demand Notice Registration requested pursuant to Section 2.2(a) shall not be deemed to be effected for purposes of this Section 2.2 if a (i) the Demand Registration Statement covering all of the Registrable Securities held for such registration has not been declared effective by the Holders providing such Demand Notice shall have SEC or has not become effective under in accordance with the Securities Act and remains effective under the Securities Act rules and is sufficient to permit offers and sales of the number and type of regulations thereunder or (ii) no Registrable Securities on the terms and conditions specified in the have been sold under such Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand NoticeRegistration Statement.
(ivc) Notwithstanding any other provision the provisions of this Section 2(a2.2(a), Triangle the Company shall not be required to effect a registration or file a Registration Statement (or take any amendment thereto) for a period of up action pursuant to 60 days, this Section 2.2 if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed which the Company shall have been requested to be included register shall have a reasonably anticipated net aggregate offering price (after deduction of underwriting discounts and fees and offering expenses) of less than $35,000,000, as determined in such offering, the Registrable Securities to be sold good faith by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is Company at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling Notice, or (ii) the Company shall have consummated a registration 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 Common Stock under the Securities Act (if available to Triangle); provided, however, that if at any time other than an Excluded Registration) within the 120-day period immediately preceding delivery of a Demand Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeNotice.
(viid) Without limiting Subject to the limitations set forth in Section 32.4(a), the Company shall have the right to include in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause to be prepared and filed (1) Statement such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, number of shares of Common Stock as it 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, Triangle 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 thereofspecify.
Appears in 2 contracts
Sources: Registration Rights and Governance Agreement (Advisory Board Co), Stock Purchase Agreement (Advisory Board Co)
Demand Registration. (a) The Holder shall have the right, at any time after the Public Offering, to require the Company to register for offer and sale under the Securities Act all or a portion of the Registrable Securities then held by the Holder; it being understood that the Holder may exercise its rights under this Section 2(a) on not more than three occasions in the aggregate. As promptly as practicable after the Company receives a notice from the Holder (a "Demand Notice") demanding that the Company register for offer and sale under the Securities Act Registrable Securities consisting, as to each Registration, of an amount of Registrable Securities held by the Holder having an estimated market value of $5 million, subject to Section 2(b), the Company shall (i) Any Holder that holds any Registrable Securities shall have the option and rightprepare and, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers within 60 days after such a Demand Noticerequest, the “Initiating Holder”), to require Triangle 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 relating to the offering offer and sale of the number and type of Registrable Applicable Securities on such form as the terms and conditions specified in Company may reasonably deem appropriate (provided that the Demand Notice in accordance with Company shall not, unless the intended timing and method or methods of distribution thereof specified in the Demand NoticeCompany otherwise consents, which may include sales be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed or continuous basis pursuant to Rule 415 (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. Notwithstanding anything to the contrary hereinbasis) and, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
thereafter, (ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become be declared effective under the Securities Act and remain as promptly as practicable after the date of filing of such Registration Statement. Subject to Section 2(b), the Company shall use reasonable efforts to keep each Registration Statement continuously effective under in order to permit the Prospectus forming a part thereof to be usable by the Holder for resales of Applicable Securities Act until all Registrable Securities covered by for an Effectiveness Period ending on the earlier of (i) 30 days from the Effective Time of such Registration Statement or (ii) such time as all of such Applicable Securities have been sold (disposed of by the “Effectiveness Period”)Holder.
(iiib) Subject The Company shall have the right to postpone (or, if necessary or advisable, withdraw) the other limitations contained in this Agreementfiling, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month periodor delay the effectiveness, (B) more than a total of five 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 held by the Holders providing Statement, or fail to keep such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (continuously effective or any amendment thereto) for a period of up to 60 daysnot amend or supplement the Registration Statement or included Prospectus, if (Ai) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due filing or causing to a pending transaction involving Triangle, (B) the Board determines be declared effective or keeping continuously effective any such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration Registration Statement would require disclosure an audit of material information that Triangle has the Company's financial statements at a bona fide business purpose for preserving as confidential (any time such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month periodaudit would not otherwise be required pursuant to the Exchange Act, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Periodthe Company determines in good faith and on the advice of counsel that it would be required to disclose in such Registration Statement information which the Company has not otherwise publicly disclosed and is not at the time required to publicly disclose, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during the Company determines in good faith that such Registration would interfere with any Blackout Period contemplated by Section 2(a)(iv)(B) pending financing, acquisition, corporate reorganization or any other corporate development involving the Company or any of its subsidiaries or (Civ) or within the 90 day period preceding the receipt by the Company of a Demand Notice, the Company has effected any Suspension Period, Triangle other registration of its securities; provided that the Company may postpone a Demand Registration no more than once in any 18 month period and that any such postponement period shall not file a registration statement (or exceed 90 days in the aggregate. The Company shall advise the Holder of any amendment or supplement thereto) for any other holder of registration rightssuch determination as promptly as practicable.
(vc) Triangle The Company may include in any such Demand Registration registration requested pursuant to Section 2(a) hereof other Triangle Securities securities for sale for its own account or for the account of any other another Person; provided that , subject to the following sentence. In connection with an underwritten offering pursuant to Section 2(a) hereof, if the managing underwriter, if any, for underwriter or underwriters advise the Underwritten Offering determines Company that in its or their opinion the type or number of Triangle Securities proposed securities requested to be offered registered exceeds the number which can be sold in such offering would likely have an adverse effect offering, the Company shall include in such Registration the number of securities that, in the opinion of such managing underwriter or underwriters, can be sold as follows: (i) first, the Applicable Securities requested to be registered, (ii) second, any material respect on the price, timing or distribution of the other Registrable Securities proposed requested to be included in such offeringRegistration pursuant to Section 3(a) hereof and (iii) third, the Registrable Securities any other securities requested to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other PersonRegistration.
(vid) Subject The Holder shall have the right to withdraw such request for Registration under Section 2(a) (i) prior to the limitations contained time the Registration Statement in this Agreementrespect of such Registration has been declared effective, Triangle shall effect (ii) upon the issuance by a governmental agency or the Commission of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company availing itself of Section 2(b) hereof, or (iv) if the Holder is prevented pursuant to Section 2(c) hereof from selling any Demand Registration on Form S-3 (except if Triangle is not then eligible of the Applicable Securities it requested to register for resale the Registrable Securities on Form S-3, in which case be registered; it being understood that such Demand Registration shall be effected on another appropriate form deemed not to have been requested for such purpose purposes of Section 2(a) hereof if the Holder withdraws its request pursuant to clause (i), (ii), (iii) or (iv) above. If the Securities ActHolder withdraws a request made pursuant to Section 2(a) and if Triangle becomesbut the Company nevertheless determines to complete, and is at the time of its receipt of a Demand Notice, a WKSIwithin 30 days after such withdrawal, the Demand Registration for any offering and selling of Registrable Securities so requested as to securities other than the Applicable Securities, the Holder shall be effected entitled to participate in such Registration pursuant to an Automatic Shelf Registration StatementSection 3 hereof, which but in such case the Intended Offering Notice shall be on Form S-3 or any equivalent or successor form under required to be given to the Securities Act (if available Holder at least 10 business days prior to Triangle); provided, however, that if at any time a the anticipated filing date of the Registration Statement on Form S-3 is effective and a the Holder provides written notice shall be required to Triangle that it intends to effect an offering give the Piggy-back Notice no later than 5 business day after the Company's delivery of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeIntended Offering Notice.
(viie) Without limiting Section 3, in connection with In the event that any Demand Registration pursuant to and in accordance with this Section 2(a)2 shall involve, Triangle shallin whole or in part, (A) promptly prepare and file an underwritten offering, the managing underwriter 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 states as the Holders shall reasonably request; provided, however, that no such qualification underwriters shall be required selected by the Company in any jurisdiction where, as a result thereof, Triangle 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 good faith 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 shall be reasonably necessary or appropriate or reasonably requested by satisfactory to 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 thereofHolder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Starband Communications Inc), Registration Rights Agreement (Starband Communications Inc)
Demand Registration. Commencing on the Closing Date, the holders of at least sixty-six and two-thirds percent (662/3%) of the aggregate number of (i) Any Holder Shares that holds any were sold to Purchasers in the Transaction, (ii) the Shares into which the Notes are or may be convertible, (iii) Warrant Shares that are issuable upon exercise of the Warrants and (iv) Warrant Shares that are issuable upon exercise of the Agent Warrants (collectively, the “Registrable Securities Securities”) shall have the option and right, exercisable by delivering a written notice right to Triangle (a “Demand Notice,” and request registration under the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 Securities Act for all or any portion of the number and type of Registrable Securities on upon the terms and conditions set forth in this Section 1(a). Promptly after receipt of a request for registration pursuant to this Section 1(a) the Company shall notify each registered holder of the Registrable Securities (a “Holder”) in writing of such request for registration except to the extent that such Holder’s Registrable Securities were included in the demand. Upon receipt of such notice from the Company (the “Company Notice”), the Holder or the Holder’s agent may give the Company a written request to register all or some of the Holder’s Shares in the Registration Statement described in the Company Notice (the “Demand Notice”), provided that such Demand Notice is given within ten (10) days after the date on which the Company Notice is given (with such request stating (i) the amount of Shares to be included and (ii) any other information reasonably requested by the Company to properly effect the registration of such Shares). The Company shall, as soon as practicable after the date on which the Company Notice is given, use reasonable commercial efforts to file a Registration Statement with the Securities and Exchange Commission (the “SEC”) covering the Shares specified in the Demand Notice and in accordance with any written request from any other Purchaser received by 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 Company within ten (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. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as 10) days of the date of on which the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Company Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be is given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and will use all commercially reasonable commercial efforts to cause such the Registration Statement to become effective effective. No right to registration of Shares under the Securities Act and remain effective this Section 1(a) shall be construed to limit any registration required under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iiiSection 1(b) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all hereof. The obligations of the Registrable Securities held by Company under this Section 1(a) shall expire after the Company has afforded the Holders providing such Demand Notice shall have become effective the opportunity to exercise registration rights under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto1(a) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rightsone registration.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Securities Purchase Agreement (SMF Energy Corp), Securities Purchase Agreement (SMF Energy Corp)
Demand Registration. (ia) Any Holder that holds any Registrable Securities The Shareholders shall each have the option and right, exercisable right to request on an unlimited number of occasions that the Company 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 delivering a written notice such Shareholder once such Shareholder is no longer subject to Triangle 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 to the Company specifying the number of Registrable Shares such Shareholder wishes to Register and the intended method of distribution thereof (a “Demand Registration” and the Holder that delivers Shareholder submitting such a Demand NoticeRegistration, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event Company shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(iii) Within five within 10 Business Days of the receipt of the Demand Noticesuch request, Triangle shall give written notice of such Demand Notice Registration (the “Company Notice”) to all Holders and, as soon as reasonably practicable thereafter, shall, subject to Shareholders other than the limitations of this Section 2(arelevant Initiating Holder (the “Eligible Holders”), (ii) use its reasonable best efforts to file a Registration Statement covering all in respect of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle Demand Registration within three 45 days of receipt of the request, provided that all necessary documents for the registration can be obtained and prepared within such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)45-day period; and (iii) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act until as soon as reasonably practicable thereafter. The Company shall include in such Registration all Registrable Securities covered by such Registration Statement have been sold (Shares that the “Effectiveness Period”).
(iii) Subject Eligible Holders request to be included within the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all 10 Business Days following their receipt of the Registrable Securities held by Company Notice. If the Holders providing method of distributing the offering is an underwritten public offering, the Company may designate (i) in its sole discretion, the managing underwriter for such Demand Notice shall have become effective under offering, subject to there being no reasonable objection from the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type Shareholders holding a majority of Registrable Securities on the terms and conditions specified Shares referred to in the Demand Notice and (ii) in accordance with its reasonable discretion, the intended timing underwriters for such offering, provided that the Shareholders agree that the designation of XP Investments US, LLC and method Itaú BBA USA Securities, Inc., or methods either of distribution thereof specified in them separately, as an underwriter or underwriters, as the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a)case may be, Triangle shall not at all times be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”)reasonable; provided, however, that in connection with a Block Trade pursuant to a Block Trade Notice delivered by the Itaú Shareholders as Initiating Holders in accordance with Section 3 below, the Itaú Shareholders may designate in their sole discretion, the underwriters for such offering.
(b) The Company shall not be obligated to use its commercially reasonable efforts to file and cause to become effective: (i) more than two Registration Statements initiated pursuant to Section 2(a) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any a 12 month -month period, ; or (ii) during any Blackout Period contemplated by Registration Statement pursuant to Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii2(a) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or period in which any Suspension Period, Triangle shall not file a other registration statement (other than on Form F-4 or Form S-8 promulgated under the Securities Act or any amendment or supplement successor forms thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed pursuant to which Shares are to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be were sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 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 Trianglecause such registration statement to become effective. The Registrable Shares requested to be Registered pursuant to Section 2(a) (including, for the avoidance 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 at any time a Registration Statement on Form S-3 is effective the managing underwriter or underwriters formally advise(s) the Company in writing and a Holder provides written notice to Triangle with sufficient explanation that it intends to effect an offering the inclusion of all or part 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 Securities Shares held by the Shareholders requesting that their Registrable Shares be included on in such Registration Statement, Triangle 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 Registration registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause to be prepared and filed (1) pro rata based upon the number of Registrable Shares owned by each such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify Shareholder at the securities subject to such Demand Registration, including under the securities laws time of such states as the Holders shall reasonably requestregistration; provided, however, that no the number of Registrable Shares held by the Shareholders to be included in such qualification underwriting shall not be required in any jurisdiction wherereduced unless all Primary Shares and Other Shares are first entirely excluded from the 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 thereofof an exercise of the underwriter’s cutback provisions in this clause (c), Triangle would become fewer than 25% of the total number of Registrable Shares that the Shareholders have requested to be included in such registration statement are actually included.
(d) A requested registration under this Section 2 may be rescinded at any time prior to such registration being declared effective by the SEC by written notice to the Company from those Shareholders who initiated the request, at their discretion; provided, however, that such rescinded registration shall not count as a registration initiated pursuant to this Section 2 for purposes of Section 2(b)(i) above if the Company shall have been reimbursed (pro rata by the Shareholders requesting registration or in such other proportion as they may agree) for all 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 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 required to reimburse the Company for any out-of-pocket expenses incurred by the Company in connection with such rescinded registration and such rescinded registration shall not count as a registration initiated pursuant to this Section 2 for purposes of clause (i) of subsection (b).
(e) The Company shall be deemed to have effected a Registration 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 earlier of (i) the date when all Registrable Shares thereunder have been sold and (ii) 60 days from the effective date of the Registration Statement (the “Registration Period”).
(f) In the event that the Company 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 general service 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 process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such formsattorney, amendmentsindemnities, supplements, prospectuses, certificates, letters, opinions underwriting agreements and other documents as may be necessary to apply for listing or to list reasonably required and in customary form under the Registrable Securities subject to terms of such Demand Registration on the Trading Market underwriting arrangements and (Biii) do any cooperates with the Company’s reasonable and all other acts and things customary requests in connection with such Registration (it being understood that may be reasonably necessary or appropriate or reasonably requested the Company’s failure to perform its obligations hereunder, which failure is caused by such Holder’s failure to cooperate, will not constitute a breach by the Holders to enable the Holders to consummate a public sale Company of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofthis Agreement).
Appears in 2 contracts
Sources: Agreement on Registration Rights and Other Resales (XP Inc.), Registration Rights Agreement (XP Control LLC)
Demand Registration. (i) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant Subject 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), if the Company receives a written request from one or more of the Investors (the "Initiating Investors") that the Company file a Registration Statement covering all under the Securities Act registering the resale of the Registrable Securities, then the Company shall, (i) give notice of such request to all Investors as soon as practicable, but in no event later than the tenth (10th) day following the date of such request, and (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 cause to become effective as soon as practicable, a Registration Statement registering the resale of all Registrable Securities that the Holders shall in writing request (such Initiating Investors request to be given to Triangle registered and all Registrable Securities owned by any other Investor that notifies the Company in writing, within three fifteen (15) days of after receipt of the Company's notice contemplated in clause (i) above, that it intends to participate in such notice demand registration, which notification shall include the number of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) Registrable Securities sought to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement Investor and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the 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 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 of such Registrable Securities. The Registration Statement filed hereunder, to the Demand Notice.
extent allowable under the Securities Act (iv) Notwithstanding any other provision of this Section 2(aincluding Rule 416), Triangle 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) the Investors participating in such demand registration and their respective counsel prior to its filing or other submission. Notwithstanding the foregoing, the Company shall not be required to effect a demand registration or file a Registration Statement pursuant to this Section 2(a): (or any amendment thereto1) for a period of up prior to 60 daysthe 180th day following the date hereof, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C2) after the Board determines such Company has effected one registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file such registration has been declared or cause to be prepared ordered effective 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 remained continuously effective without interruption in accordance with the intended timing and method or methods provisions of distribution thereofSection 3 hereof for the duration of the Registration Period (as defined in Section 3(a) below).
Appears in 2 contracts
Sources: Registration Rights Agreement (P Com Inc), Registration Rights Agreement (P Com Inc)
Demand Registration. (i) Any Holder that holds any Registrable Securities shall have Upon the option and right, exercisable by delivering a written notice to Triangle request (a “Demand Notice,” and ”) by GPM or by any other Holder(s) owning at least ten percent (10%) of the Holder that delivers such a Demand Noticethen-outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04), the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and Partnership shall 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders andCommission, as soon as reasonably practicable thereafterpracticable, shallbut in no event more than 90 days following the receipt of the Notice, subject to a registration statement (each, a “Registration Statement”) under the limitations of this Section 2(a), file a Registration Statement covering all Securities Act providing for the resale of the Registrable Securities that (which may, at the option of the Holders shall in writing request (giving such request to Notice, be given to Triangle within three days of receipt of such notice a registration statement under the Securities Act that provides for the resale of the Demand Notice given by Triangle Registrable Securities pursuant to this Section 2(a)(ii)) Rule 415 from time to be included in such Demand Registration as promptly as practicable as directed time by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and Holders (a “Shelf Registration Statement”)). The Partnership shall use all its commercially reasonable efforts to cause such each Registration Statement to become be declared effective under by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities Act covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be continuously effective, supplemented and remain effective under amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities Act by the Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a . Each Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Securities Act and is sufficient to permit offers and sales of statements therein not misleading. There shall be no limit on 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not Registration Statements that may be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personhereunder.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (GPM Petroleum LP), Registration Rights Agreement (GPM Petroleum LP)
Demand Registration. (i) Any Holder that holds any Registrable Securities shall have Upon the option and right, exercisable by delivering a written notice to Triangle request (a “Demand Notice,” and ”) by CEG or by any other Holder(s) owning at least ten percent (10%) of the Holder that delivers such a Demand Noticethen-outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04), the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and Partnership shall 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders andCommission, as soon as reasonably practicable thereafterpracticable, shallbut in no event more than 90 days following the receipt of the Notice, subject to a registration statement (each, a “Registration Statement”) under the limitations of this Section 2(a), file a Registration Statement covering all Securities Act providing for the resale of the Registrable Securities that (which may, at the option of the Holders shall in writing request (giving such request to Notice, be given to Triangle within three days of receipt of such notice a registration statement under the Securities Act that provides for the resale of the Demand Notice given by Triangle Registrable Securities pursuant to this Section 2(a)(ii)) Rule 415 from time to be included in such Demand Registration as promptly as practicable as directed time by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and Holders (a “Shelf Registration Statement”)). The Partnership shall use all its commercially reasonable efforts to cause such each Registration Statement to become be declared effective under by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities Act covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be continuously effective, supplemented and remain effective under amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities Act by the Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a . Each Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Securities Act and is sufficient to permit offers and sales of statements therein not misleading. There shall be no limit on 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not Registration Statements that may be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personhereunder.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (Columbia Pipeline Partners LP), Registration Rights Agreement (Columbia Pipeline Partners LP)
Demand Registration. Commencing on or after the six (i) Any Holder that holds 6)-month anniversary of the date of this Agreement and from time to time so long as there are any Registrable Securities outstanding, if the Company is not eligible to file a Shelf Registration Statement under SEC Guidance, if the Company has not caused a Shelf Registration Statement to be declared effective by the Commission in accordance with Section 2.4(a) or if the Shelf Registration Statement shall have the option and rightcease to be effective, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the minimum size limitations contained in this AgreementSection 2.5(a), prepare and file with the Commission Holder(s) holding a Registration Statement registering the offering and sale of the number and type majority of Registrable Securities on then outstanding may collectively make one or more written requests to the terms Company for registration under the Securities Act of all or part of its or their Common Stock constituting Registrable Securities, including for the avoidance of doubt shares of Common Stock issued or issuable upon exercise of the Warrants and conditions specified in the Demand Notice in accordance with the intended timing and method shares of Common Stock issued or methods issuable upon exchange of distribution thereof specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 Common Partnership Units (a “Demand Registration”). The Holder(s) submitting the request for a Demand Notice must set forth Registration shall concurrently provide written notice of the proposed registration to all other Holders. The Company shall prepare and file with the Commission as soon as practicable thereafter (but in no event later than sixty (60) days after such request for a Demand Registration), a registration statement on an appropriate form which the Company is then eligible to use under SEC Guidance with respect to any Demand Registration (a “Demand Registration Statement”), and shall use its reasonable best efforts to cause any such Demand Registration Statement to be declared effective by the Commission as promptly as reasonably practicable after the filing thereof. Any request for a Demand Registration will specify the number of shares of Registrable Securities proposed to be sold in the offering thereof; provided that the requesting Holder(s) may change the number of Registrable Securities that the Initiating Holder intends proposed to include in such be offered pursuant to any Demand Registration. Notwithstanding anything Registration at any time prior to the contrary hereinDemand Registration Statement being declared effective by the Commission, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, each case subject to the minimum size limitations of this in Section 2(a2.5(a), file a Registration Statement covering all of . Under no circumstances shall the Registrable Securities that the Holders shall in writing request (such request to Company be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two (2) Demand Registrations in any 12 month twelve (12)-month period, . Any Demand Registration shall be on Form S-3ASR (Bor any successor form thereto) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent the extent available for such Demand Registration pursuant to a Demand Notice if a Registration Statement covering all SEC Guidance. The “Plan of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales Distribution” section 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling Statement shall permit all lawful means of disposition 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 RegistrationSecurities, including under the securities laws of such states as the Holders shall reasonably request; providedfirm-commitment underwritten public offerings, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 Alternative Transactions 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 sales not involving a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofoffering.
Appears in 2 contracts
Sources: Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc)
Demand Registration. (i) Any A Holder or Holders that holds any hold not less than a majority of the then outstanding Registrable Securities (such Holder or group being referred to as the “Initiating Holder”) shall have the option and right, exercisable by delivering a written notice to Triangle the Corporation (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle the Corporation to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission SEC 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle the Corporation be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 3.5 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle the Corporation shall give written notice of such Demand 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 limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle the Corporation within three days of receipt of such notice of the Demand Notice given by Triangle the Corporation pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle 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 five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 on substantially the terms and conditions specified in the Demand Notice in accordance in all material respects with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a). In addition, Triangle shall the Corporation will not be required to effect a registration or file a Registration Statement (or any amendment thereto) for at a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time when filing a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may would be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 prohibited by the Holders to enable the Holders to consummate terms of a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.customary
Appears in 2 contracts
Sources: Registration Rights Agreement (Magellan Petroleum Corp /De/), Registration Rights Agreement (Magellan Petroleum Corp /De/)
Demand Registration. (ia) Any Holder If at any time during the Eligible Period the Stockholder requests in writing (the "Stockholder Demand") that holds the Company file a registration statement on Form S-3 (or any successor form to Form S-3, or, if Form S-3 is not then available, on Form S-1 or any other available form) for a public offering of shares of the Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand NoticeShares, the “Initiating Holder”anticipated aggregate offering price of which, net of standard underwriting fees and discounts, is at least five million dollars ($5,000,000), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, Company shall, subject to the limitations of this Section 2(a)4.1 hereof, file a such Registration Statement covering all of with the Registrable Securities that the Holders shall in writing request SEC within forty-five (such request to be given to Triangle within three 45) days of after its receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and request. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become be declared effective under as soon thereafter as practicable and keep such registration statement effective until the Securities Act and remain effective under Stockholder notifies the Securities Act until all Registrable Securities covered by Company in writing that the Company is no longer required to keep such Registration Statement have been sold effective. In no event, however, shall the Company be required to (i) effect more than four (4) registrations pursuant to this section or (ii) keep one or more registration statements filed pursuant to this section effective for more than an aggregate of one hundred twenty (120) days. In the “Effectiveness Period”)event the registration is proposed to be part of a firm commitment underwritten public offering, the substantive provisions of Section 2.3 hereof shall be applicable to each such registration initiated under this Section 2.1 and the piggyback registration rights of Holders and Automaker Holders (to the extent provided for in the Existing Registration Rights Agreement and the Automaker Registration Rights Agreement) shall be applicable, subject to Section 2.3 below, to a registration effected pursuant to this Section 2.1.
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(ivb) Notwithstanding any other provision of this Section 2(a)the foregoing, Triangle the Company shall not be required obligated to effect a registration or file a Registration Statement take any action pursuant to subparagraph (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that a):
(i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate if the Company, within ten (10) days of 120 days in any 12 month periodthe receipt of the Stockholder Demand, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving gives notice of its bona fide intention to effect the offer, issuance, sale, or purchase filing of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement with the SEC within forty-five (45) days of receipt of such demand (other than a registration relating primarily to the sale of securities to participants in a Company stock plan of employee benefit plan, a transaction covered by Rule 145 under the 1933 Act or any amendment or supplement thereto) for any other holder the resale of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered securities issued in such offering a transaction, a registration in which the only stock being registered is Common Stock issuable upon conversion or exchange of debt securities which are also being registered, any registration on any form which does not include substantially the same information as would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed be required to be included in such offering, a registration statement covering the sale of the Registrable Securities to be sold by the Holders shall be included in such Shares, or a registration before any Triangle Securities proposed to be sold for the account initiated under Section 2.1 or 2.2 of Triangle or any other Person.
(viAutomaker Registration Rights Agreement) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 such registration statement is not filed by the Company within 45 days of receipt of such Stockholder Demand and declared effective and a Holder provides written notice by the Commission with 120 days after the Company's receipt of such Stockholder Demand, the Company shall be obligated to Triangle that it intends to effect an offering of all or part cause such Registrable Shares of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may Stockholder to be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and registered in accordance with the provisions of this Section 2(a)2.1 provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(ii) during the period starting with the Company's date of filing of, Triangle shalland ending on the date ninety (90) days immediately following, (A) promptly prepare and file or cause the effective date of any registration statement pertaining to be prepared and securities of the Company, which registration was either 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 the exercise by Stockholder of its rights pursuant to apply for listing Section 2.1 hereof or to list the Registrable Securities was 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 thereofSection 2.2 hereof.
Appears in 2 contracts
Sources: Investor Rights Agreement (Commerce One Inc), Investor Rights Agreement (New Commerce One Holding Inc)
Demand Registration. (ia) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice On or prior to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Noticeeach Filing Date, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, Company shall prepare and file with the Commission a Registration Statement registering covering the offering and sale resale 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request are not then registered on an effective Registration Statement for an offering to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle made on a continuous basis pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Rule 415. Each Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated filed hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant subject to the Securities Actprovisions of Section 2(d)) and if Triangle becomes, and is shall contain (unless otherwise directed by 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part least 85% in interest of the Registrable Securities included on such Registration Statement, Triangle will amend Holders or supplement such Registration Statement to make any disclosure contained therein not misleading) substantially the “Plan of Distribution” attached hereto as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to Annex A and in accordance with this Section 2(a), Triangle 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, substantially the “Selling Stockholder” section attached hereto 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 requestAnnex B; provided, however, that no such qualification Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use reasonable best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any jurisdiction whereevent no later than the applicable Effectiveness Date, and shall use reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement cease to be Registrable Securities (the “Effectiveness Period”). The Company shall notify the Holders via e-mail of the effectiveness of a Registration Statement as promptly as practicable, and shall, if requested, provide the Holders with copies of the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.
(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities cannot, as a result thereofof the application of Rule 415, Triangle would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely be registered for resale as a result secondary offering on a single registration statement, the Company agrees to promptly inform each of registration the Holders thereof and (2) use reasonable best efforts to file an amendment or amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary form available to apply register for listing or to list resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(d); with respect to filing on Form S-3 or other appropriate form; provided, however, that prior to filing such Demand Registration on amendment, the Trading Market and (B) do any and Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all other acts and things that may be reasonably necessary or appropriate or reasonably requested by of the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing SEC Guidance, including without limitation, Securities Act Rules Compliance and method Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of this Agreement, if the Commission or methods any SEC Guidance sets forth a limitation on the number of distribution thereofRegistrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission to maximize the number of Registrable Securities to be registered), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
(i) First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities;
(ii) Second, the Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders); and
(iii) Third, the Company shall reduce Registrable Securities represented by Shares (applied to the Holders on a pro rata basis based on the total number of unregistered Shares held by such Holders). In the event of a reduction hereunder, the Company shall give the Holder at least five (5) Trading Days’ prior written notice along with the calculations as to such ▇▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, then the Company shall use reasonable best efforts to file with the Commission, as promptly thereafter as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(d) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall 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.
(e) Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Adverum Biotechnologies, Inc.), Registration Rights Agreement (Adverum Biotechnologies, Inc.)
Demand Registration. (ia) Any Holder that holds At any Registrable Securities time following the 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 have the option and right, exercisable by delivering making a written notice request (the "Registration Request") to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”)Company, to require Triangle 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 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 demand that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to Company effect the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 provisions of the Act. Upon receipt of the Registration Request, the Company shall be obligated to register each of the Registrable Securities 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 method all of the Company's demand Registration obligations hereunder shall be deemed to be 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 2(a) hereof, the Company shall (i) file within ninety (90) days thereafter a registration statement on the appropriate form 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 methods sole underwriter shall require (which must only contain terms and conditions customary for offerings of distribution thereofequity 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 other provision hereof, Orbiter acknowledges and agrees that there can be no guarantee or warranty from or by the Company that any such registration statement will ever be declared effective by the Commission, and that the Company makes no such guarantee or warranty in this Agreement or otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (Genetic Vectors Inc), Registration Rights Agreement (Genetic Vectors Inc)
Demand Registration. (ia) Any After the expiration of 180 days after the Closing Date, any Holder that holds any or Holders who collectively Beneficially Own at least 20% of the Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle may request (a “Demand "Request Notice,” and ") the Holder that delivers such a Demand Notice, Company to register under the “Initiating Holder”), to require Triangle 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 in accordance with the intended timing and method Act all 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all any portion of the Registrable Securities that are held by such Holder or Holders (collectively, the "Requesting Holder") for sale in the manner specified in the Request Notice.
(b) Promptly following receipt of a Request Notice, the Company shall notify each Holder (except the Requesting Holder) of the receipt of a Request Notice and shall use its commercially reasonable efforts to file a registration statement under the Securities Act (each such registration statement is hereinafter referred to as a "Registration Statement") effecting the registration under the Securities Act, for public sale in accordance with the method of disposition specified in such Request Notice, of the Registrable Securities specified in the Request Notice (and in any notices that the Company receives from other Holders shall in writing request no later than the 15th day after receipt of the notice sent by the Company) (such request other Holders and the Requesting Holder are hereinafter referred to as the "Requesting Holders"). If such method of disposition shall be an underwritten public offering, the Company may designate the managing underwriter of such offering, subject to the approval of the Requesting Holders holding a majority of the Registrable Securities to be given registered, which approval shall not be withheld unreasonably. The Company shall be obligated to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle register Registrable Securities pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”)2.01 on two occasions only.
(iiic) Subject to If the other limitations contained in this AgreementCompany has received a Request Notice, Triangle is whether or not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all with respect thereto has been filed or has become effective, and furnishes to the Requesting Holders a copy of a resolution of the Registrable Securities held Board of Directors of the Company certified by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales Secretary of the number and type of Registrable Securities on the terms and conditions specified Company stating that in the Demand Notice in accordance with good faith judgment of the intended timing and method or methods Board of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall Directors it would not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its the Company's stockholders generally due for such Registration Statement (A) to a pending transaction involving Trianglebe filed on or before the date such filing would otherwise be required hereunder, or (B) to become effective because such action (x) would materially interfere with a significant acquisition, corporate reorganization or other similar transaction involving the Board determines such registration would render Triangle unable to comply with applicable securities laws or Company, (Cy) the Board determines such registration would require premature disclosure of material information that Triangle the Company has a bona fide business purpose for preserving as confidential confidential, or (z) the Company is unable to comply with requirements of the Commission, the Company shall have the right, but not more than once in any calendar year with respect to any Request Notice, to defer such periodfiling or effectiveness for such period as may be reasonably necessary (which period shall not, in any event, exceed ninety days from the date the response period for Holders pursuant to Section 2.01(b) expires).
(d) The Company shall be entitled to include in any Registration Statement filed pursuant to this Section 2.01, for sale in accordance with the method of disposition specified by the Requesting Holder, securities of the Company entitled to vote generally in the election of directors (or any securities convertible into or exchangeable for or exercisable for the purchase of securities so entitled generally to vote in the election of directors) (collectively, "Voting Securities") to be sold by the Company for its own account, except as and to the extent that, in the opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering), such inclusion would materially jeopardize the successful marketing of the Registrable Securities to be sold. Any Person other than a “Blackout Period”); providedHolder (the "Other Holders") entitled to piggy-back registration rights with respect to a Registration Statement filed pursuant to this Section 2.01 may include Voting Securities of the Company with respect to which such rights apply in such Registration Statement for sale in accordance with the method of disposition specified by the Requesting Holder, howeverexcept and to the extent that, that in the opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering) such inclusion would materially jeopardize the successful marketing of the Registrable Securities to be sold. Except as provided in this subsection (d) and in Section 2.05, the Company will not effect any other registration of its Voting Securities (except with respect to Registration Statements on Form S-4 or S-8 or any forms succeeding thereto for purposes permissible under such forms as of the date hereof or filed in connection with an exchange offer or an offering of securities solely to the Company's existing stockholders or such other registration statements (i) for the resale of shares issued pursuant to an employee stock ownership trust or other benefit plan of a business acquired in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, Acquisition or (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise non-underwritten resales of outstanding securitiessecurities issued to owners of a business acquired in an Acquisition), including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale whether for its own account or for the account that of any Other Holder, from the date of receipt of a Request Notice requesting the registration of an underwritten public offering until the completion or abandonment of the distribution by the underwriters of all securities thereunder. From and after the date of this Agreement and until no Registrable Securities remain outstanding, the Company shall not grant any demand registration rights to any Person unless such rights are expressly made subject to the right of Holders to include an equal number of shares of the Registrable Securities along with the other Person; provided that if 's shares in any registration relating to an underwritten public offering with respect to which, in the opinion of the managing underwriter, if any, for the Underwritten Offering determines that the type or number inclusion of Triangle Securities proposed all shares requested to be offered in such offering registered by all Persons holding registration rights, would likely have an adverse effect in any material respect on materially jeopardize the price, timing or distribution successful marketing of the securities (including the Registrable Securities proposed Securities) to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personsold.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (Enron Capital & Trade Resources Corp), Registration Rights Agreement (Quanta Services Inc)
Demand Registration. (a) Any Holder holding a majority of Registrable Securities may request registration of such Registrable Securities. Upon receipt of such request (specifying that it is being made pursuant to this Section 2.2(a)), the Corporation shall use its best efforts to file within ninety (90) days of such receipt a registration statement on Form S-3 for the resale of the Registrable Securities and shall use its best efforts to cause such registration statement to become effective as expeditiously as reasonably practical. The Corporation shall be obligated to prepare, file and cause to be effective only one registration statement pursuant to this Section 2.2(a). The Corporation shall be obligated to prepare, file and cause to be effective only two registration statements pursuant to this Section 2.2(a). Upon the receipt of such request, the Corporation shall:
(i) Any promptly give to each remaining Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice that a registration is to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.effected; and
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of include in such Demand Notice to registration (and any related qualification under blue sky laws or other compliance) all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall specified in writing a written request (or requests made within 20 days after such request to be given to Triangle within three days of receipt of such written notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed was sent by the Initiating Holder in accordance with Corporation, by any Holder. Further, the terms and conditions of the Demand Notice and Corporation shall use all commercially reasonable efforts to cause such Registration Statement registration to become effective be a non-underwritten shelf registration pursuant to Rule 415 under the Securities Act and remain to cause such shelf registration to be maintained effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold for at least two (the “Effectiveness Period”)2) years.
(iiib) Subject Notwithstanding the foregoing, the Corporation shall not be obligated to take any action pursuant to this Section 2.2: (i) in any particular jurisdiction in which the Corporation would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Corporation is already subject to service in such jurisdiction and except as may be required by the Securities Act; or (ii) if the Corporation shall furnish to the other limitations contained Holders a certificate signed by the Chairman or President of the Corporation stating that the Corporation has reasonably determined that it should postpone for a specified period of time not to exceed 120 days in this Agreement, Triangle is not obligated hereunder to effect the case of clause (A) more than two Demand Registrations below, or 45 days in any 12 month period, the case of clause (B) more than a total of five Demand Registrations pursuant to this Agreement and below (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such periodeach, a “Blackout Period”); provided, howeverany action pursuant to this Section, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate including, without limitation, the preparation and/or filing of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) a registration statement or prospectus or any Suspension Periodamendments or supplements to any registration statement or prospectus, Triangle shall not engage in because any such filing would (A) materially impede, delay or otherwise interfere with an offer or sale of securities, acquisition, corporate reorganization or other significant transaction involving the Corporation, or (B) require disclosure of material information (other than an event described in clause (A) above) which, if disclosed at that time, would be materially harmful to the interests of the Corporation and its shareholders. Upon delivery of such a certificate to the Holders by the Corporation, each of the Holders covenants that he shall (X) keep the fact of the notice strictly confidential, (Y) promptly halt any offer, issuance, sale, trading or purchase transfer by him and his affiliates of Triangle Securities (whether any Common Stock for the benefit duration of Triangle the Blackout Period set forth in the certificate or a third Person), except transactions involving until the issuance or purchase of Triangle Securities as contemplated Blackout Period is earlier terminated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, Corporation and (iiiZ) during promptly halt any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing use or distribution of the Registrable Securities proposed to be included in registration statement and prospectus by him and his affiliates for the duration of the Blackout Period or until such offering, the Registrable Securities to be sold Blackout Period is earlier terminated by the Holders Corporation. The Corporation shall not be included in such registration before any Triangle Securities proposed entitled to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose deliver a certificate and impose a Blackout Period pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required Clause A more than once in any jurisdiction where, as a result thereof, Triangle 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 thereoftwelve month period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Bioject Medical Technologies Inc), Registration Rights Agreement (Bioject Medical Technologies Inc)
Demand Registration. (i) Any Holder that holds At any Registrable Securities time and from time to time after the effective date hereof but prior to the fifth anniversary of the effective date hereof, the holders of Underwriter Warrants shall have the option and right, exercisable by delivering a right to make written notice request of the Company on one occasion to Triangle register under the Act at least fifty percent (a “Demand Notice,” and 50%) of the Holder that delivers such a Demand Notice, Underlying Stock which would be issuable upon exercise of the “Initiating Holder”), to require Triangle to, Underwriter Warrants pursuant to the terms and conditions hereof. The Underlying Stock specified in such request or a request pursuant to Section 3(d) hereof is referred to herein as the "Subject Stock." Promptly upon receipt of and subject to such request, the limitations contained in this Agreement, prepare and Company shall file with the Commission a Registration Statement registering on the offering and sale applicable form for the registration 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice Subject Stock and use all commercially reasonable its best efforts to cause such Registration Statement to become effective (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (Rules and Regulations promulgated thereunder) as soon as practicable to permit or facilitate the “Effectiveness Period”).
(iii) sale and distribution of the Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than Stock. Immediately upon receipt of a total of five Demand Registrations request for registration pursuant to this Agreement Section 3(c), the Company shall notify each of the holders of Underwriter Warrants of such request. Notwithstanding the provisions of this Section 3(c), if the Company shall furnish to the holders of Underwriter Warrants 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 and (C) a subsequent Demand Registration pursuant to a Demand Notice if its stockholders for such a Registration Statement covering all to be filed and it is therefore essential to defer a filing of such Registration Statement, the Registrable Securities held by the Holders providing such Demand Notice Company shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient right to permit offers and sales 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) defer such filing for a period of up not more than one hundred twenty (120) days after receipt of the request from the holders of Underwriter Warrants to 60 days, if (A) the Board determines that effect such a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”)registration; provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days the Company may not utilize the right more than once in any 12 twenty-four (24) month period; and, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Periodprovided further, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number holders of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the priceUnderwriter Warrants may, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective in writing, withdraw such request for such registration and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of therefore preserve the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary right provided in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A3(c) promptly prepare and file or cause for the holders of Underwriter Warrants to be prepared and filed (1) request 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereofregistration.
Appears in 2 contracts
Sources: Warrant Agreement (Autobond Acceptance Corp), Warrant Agreement (Autobond Acceptance Corp)
Demand Registration. (ia) Any To the extent that a 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 Existing Holders (the “Demanding Holders”), in each case, may request that the Company register under the Securities Act all or any portion of its Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto with respect to a underwritten public offering of Registrable Securities (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in 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 holds any includes all or a portion of such Holder’s Registrable Securities shall have the option and rightin such Registration, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Requesting Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, . The Company shall prepare and file with the Commission a Registration Statement registering the offering and sale on Form S-1 or any successor form thereto covering all of the number and type of 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 Demand Notice Registration Statement to be declared effective as soon as practicable after the filing thereof, but in accordance 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 intended timing and method Commission pursuant to this Section 2(b) shall be on Form S-1 or methods such other form of distribution thereof specified in registration statement as is then available to effect a registration for the Demand Notice, which may include sales sale or resale of such Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under the 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) at any time 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 under the Securities Act of additional Registrable Securities pursuant to such Registration Statement, the Company shall amend such Registration Statement to cover such additional Registrable Securities.
(c) The Company shall use its reasonable best efforts to qualify and remain qualified to register the 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 the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. For purposes hereof, “Target Filing Date” shall mean the date which is 30 days after the Company becomes qualified to register the offer and sale of securities under the Securities Act pursuant to a Shelf Registration Statement. If, after the filing of a Shelf Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such Shelf Registration, 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 Shelf Registration (as defined below), a “Demand Registration”). The Demand Notice must set forth Each request for a Short-Form Registration shall specify the number of Registrable Securities that requested to be included in the Initiating Holder intends to include in such Demand Short-Form Registration. Notwithstanding anything to Upon receipt of any such request, the contrary herein, Company shall promptly (but in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less later than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii10 days following receipt thereof) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written deliver notice of such Demand Notice request to all Holders and, as soon as reasonably practicable thereafter, shall, subject other holders of Registrable Securities who shall then have 10 days from the date such notice is given to notify the limitations Company in writing of this Section 2(a), their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) holders thereof have requested to be included in such Demand Short-Form Registration as promptly as practicable as directed by within 30 days after the Initiating Holder in accordance with date on which the terms initial request is given and conditions of the Demand Notice and shall use all commercially reasonable its best efforts to cause such Registration Statement to become be declared effective under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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 NoticeCommission as soon as practicable thereafter.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (Wejo Group LTD), Merger Agreement (Virtuoso Acquisition Corp.)
Demand Registration. Subject to Sections 3.1(d) and 3.2 hereof, at any time after the date that is 180 days after the IPO Closing Date, if one or more Designated Holders (ithe “Initiating Holders”) Any Holder that holds any desire to exercise their Registration Rights with respect to the Registrable Securities shall have Securities, such Initiating Holders may deliver to the option and right, exercisable by delivering Company a written notice to Triangle (a “Demand Registration Notice,” ”) informing the Company of their desire to have the Registrable Securities registered for sale and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 specifying the number and type of Registrable Securities on to be registered by 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 Company (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. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the Upon receipt of the Demand Registration Notice, Triangle if the Company is not able to cause the Registrable Securities to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the Commission and which remains in effect and not subject to any stop order, injunction or other order or requirement of the Commission (the “Shelf Registration Statement”) (in which event the Company shall give written notice of such Demand Notice be deemed to all Holders have satisfied its registration obligation under this Section 3.1(a) with respect to the Registrable Securities, and, for the avoidance of doubt, such registration shall not be deemed a Demand Registration), then the Company shall cause to be filed with the Commission as soon as reasonably practicable thereafterafter receiving the Registration Notice, shallbut in no event more than thirty (30) days following receipt of such notice, a new registration statement and related prospectus (the “New Registration Statement”) that complies as to form in all material respects with applicable Commission rules providing for the sale by the Designated Holders of the Registrable Securities, and agrees (subject to Section 3.2 hereof) to use reasonable best efforts to cause the limitations of New Registration Statement and related Prospectus to be declared and remain effective by the Commission as soon as practicable. (As used herein, “Registration Statement” and “Prospectus” refer to a registration statement and related prospectus (including any preliminary prospectus) filed pursuant to the Securities Act utilized by the Company to satisfy a Designated Holder’s Registration Rights pursuant to this Section 2(aAgreement, including, but not limited to, an Issuer Registration Statement and related prospectus (including any preliminary prospectus), file a Shelf Registration Statement covering and related prospectus (including any preliminary prospectus) or a New Registration Statement and related prospectus (including any preliminary prospectus), including, in each case, any documents incorporated therein by reference). Subject to Section 3.2 hereof, the Company agrees to use commercially reasonable efforts to keep the Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date that is two (2) years after the date of effectiveness of the Registration Statement, (ii) the date on which all of the Registrable Securities that the Holders shall registered in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle Registration are eligible for sale without registration pursuant to this Section 2(a)(ii)Rule 144 (or any successor provision) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
without volume limitations or other restrictions on transfer thereunder, or (iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering date on which all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the 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 on the terms and conditions specified registered in the Demand Registration are sold. Notwithstanding the foregoing, the Company may at any time prior to receiving a Registration Notice from a Designated Holder, but subject to the prior consent of the Designated Holders, include all of the Designated Holders’ Registrable Securities or any portion thereof in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
any Registration Statement (iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file than a Registration Statement (on Form S-4 or S-8 or any amendment successor thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase including by virtue of Triangle adding such Registrable Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand additional securities to an existing Shelf Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose Statement pursuant to the Securities ActRule 462(b) and if Triangle 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 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 in which event the Company shall be deemed to Trianglehave satisfied its registration obligation under this Section 3.1(a) with respect to the Registrable Securities so included, so long as such registration statement remains effective and not the subject of any stop order, injunction or other order of the Commission); provided, however, that if at any time such registration shall not constitute a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (QTS Realty Trust, Inc.), Registration Rights Agreement (QTS Realty Trust, Inc.)
Demand Registration. (ia) Any If at any time any Holder that holds any Registrable Securities shall have request the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall Company in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective register under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than or a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all part of the Registrable Securities held by the Holders providing such Holder (a "Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(aRegistration"), Triangle the Company shall not use all reasonable efforts to cause to be required to effect a registration or file a Registration Statement filed and declared effective as soon as reasonably practicable (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) but in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (iilater than the 45th day after such Holder's request is made) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or providing for the account sale of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in all such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold registered by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this AgreementHolder, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is including, but not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt of a Demand Noticelimited to, 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 connection with the intended timing issuance of any securities convertible into or exchangeable or exercisable for Registrable Securities or the sale of Registrable Securities upon conversion, exercise or exchange thereof. The Company agrees to use its reasonable efforts to keep any such registration statement continuously effective and method usable for resale of Registrable Securities for so long as the Holder whose Registrable Securities are included therein shall request. The Company shall be obligated to file registration statements pursuant to this Section 2(a) until all Registrable Securities have ceased to be Registrable Securities. Each registration statement filed pursuant to this Section 2(a) is hereinafter referred to as a "Demand Registration Statement." The Company may, if permitted by law, effect any registration pursuant to this Section 2(a) by the filing of a registration statement on Form S-3. However, if such registration involves an underwritten public offering and the managing underwriter(s) at any time shall notify the Company in writing that, in the sole judgment of such managing underwriter(s), inclusion of some or methods all of the information required in a more detailed form specified in such notice is of material importance to the success of the public offering of such Registrable Securities, the Company shall use all reasonable efforts to supplement or amend the registration statement to include such information.
(b) The Company agrees (i) not to effect any public or private sale, distribution thereofor purchase of any of its securities which are the same as or similar to the Registrable Securities, including a sale pursuant to Regulation D under the Securities Act, during the 15-day period prior to, and during the 45-day period beginning on, the closing date of each underwritten offering under any Demand Registration Statement, and (ii) to use reasonable efforts to cause each holder of its securities purchased from the Company, at any time on or after the date of this Agreement (other than in a registered public offering), to agree not to effect any public sale or distribution of any such securities during such period, including a sale pursuant to Rule 144 under the Securities Act.
(c) The Company may postpone for a reasonable period of time, not to exceed 30 days, the filing or the effectiveness of any Demand Registration Statement if (i) the Board of Directors of the Company in good faith determines that (A) such registration would have a material adverse effect on any plan or proposal by the Company with respect to any financing, acquisition, recapitalization, reorganization or other material transaction, or (B) the Company is in possession of material non-public information that, if publicly disclosed, would result in a material disruption of a major corporate development or transaction then pending or in progress or in other material adverse consequences to the Company, and (ii) the Company so notifies the Holder(s) within five days after the Holder(s) requests such registration. The Company's right to defer the filing of a registration statement pursuant to the provisions of the preceding sentence may not be exercised more than once during any 12 month period.
(d) If at any time any Holder notifies the Company in writing of the Holder's desire that the Registrable Securities to be covered by a Demand Registration Statement be sold in an underwritten offering, such Holder shall have the right to select any nationally recognized investment banking firm(s) to administer the offering, subject to the approval of the Company, which approval shall not be unreasonably withheld, and the Company shall enter into underwriting agreements with the underwriter(s) of such offering, which agreements shall contain such representations and warranties by the Company, and such other terms, conditions and indemnities as are at the time customarily contained in underwriting agreements for similar offerings and the Company shall take or cause to be taken all such other actions, in addition to the registration procedures set forth in Section 4 hereof, as are reasonably requested by the managing underwriter(s) in order to expedite or facilitate the registration and disposition of the Registrable Securities, including, without limitation, causing management to participate in "road show" presentations.
Appears in 2 contracts
Sources: Registration Rights Agreement (M & F Worldwide Corp), Registration Rights Agreement (Mafco Holdings Inc)
Demand Registration. (i) Any Holder 2.1.1 As soon as practicable upon the first date after the date of this Registration Rights Agreement that holds the Company is eligible pursuant to General Instructions I.A. and I.B.3. to Form S-3 of the Securities Act to register and sell on a Form S-3 securities held by selling shareholders, but in any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers event no later than ten days after such a Demand Noticedate, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and Company shall file with the Commission a Registration Statement registering shelf registration statement on Form S-3 covering 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all resale of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder on a continuous basis in accordance with Rule 415 under the terms and conditions of Securities Act (the Demand Notice and "REGISTRATION STATEMENT"). The Company shall use all commercially its reasonable best efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreementas soon as practicable, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) but in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 later than ninety (90) days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving after the offer, issuance, sale, or purchase of Triangle Securities (whether for date the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible NoteRegistration Statement was filed, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder to cause the sale of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included qualified in such registration before any Triangle Securities proposed to be sold for state jurisdictions as the account of Triangle or any other PersonHolder may request.
2.1.2 Except as set forth herein, the Company shall take all reasonable steps necessary to keep the Registration Statement current and effective until the lesser of: (vii) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 two years and (except if Triangle is not then eligible to register for resale ii) until the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose are transferable pursuant to the Securities Act) and if Triangle 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 shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form Rule 144 under the Securities Act (if available to Triangle); provided, however, that if without the volume limitations set forth in such rule.
2.1.3 If at any time a the Company is requested to file the Registration Statement on Form S-3 is effective and pursuant hereto, the Company (i) has previously initiated bona fide discussions with underwriters in preparation for a Holder provides written notice to Triangle that it intends to effect an public offering of all its securities and its underwriters reasonably believe (as evidenced by a letter to the Company) that such public offering would be materially adversely affected by the registration so requested, or part (ii) is in possession of material information it reasonably deems advisable not to disclose in a registration statement, the Company may, by prompt notice, postpone the filing of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement for so long as may be (x) its underwriters state in writing is necessary in order to enable or (y) such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause information continues to be prepared material and filed non-public, but in no event shall the Company delay filing of the Registration Statement if as a result thereof, the effective date of the Registration Statement would be delayed for longer than three (13) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify months after the securities subject to such Demand Registration, including under the securities laws of such states as the Holders shall reasonably registration request; provided, however, that the Company shall have the right to postpone any filing pursuant to this Section 2.1.3 no more than one time.
2.1.4 The Company shall be entitled to require that a holder or holders of Registrable Securities refrain from effecting any public sales or distributions of the Registrable Securities pursuant to a Registration Statement that has been declared effective by the Commission or otherwise, if the board of directors of the Company reasonably determines that such qualification public sales or distributions would interfere in any material respect with any transaction involving the Company that the board of directors reasonably determines to be material to the Company. The board of directors shall, as promptly as practicable, give the holders of the Registrable Securities written notice of any such development. In the event of a request by the board of directors of the Company that the holders of Registrable Securities refrain from effecting any public sales or distributions of the Registrable Securities, the Company shall be required in any jurisdiction where, as a result thereof, Triangle would become subject to general service lift such restrictions regarding effecting public sales or distributions 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 as soon as reasonably practicable after the Trading Market and (B) do any and all other acts and things that may be board of directors shall reasonably necessary determine public sales or appropriate or reasonably requested distributions by the Holders to enable holders of the Holders to consummate a public sale of such Registrable Securities shall not interfere with such transaction, PROVIDED, that in accordance with no event shall any requirement that the intended timing and method holders of the Registrable Securities refrain from effecting public sales or methods of distribution thereofdistributions in the Registrable Securities extend for more than 90 days.
Appears in 2 contracts
Sources: Reimbursement Agreement (Industrial Holdings Inc), Reimbursement Agreement (Industrial Holdings Inc)
Demand Registration. (i) Any At any time after the expiration of the Lock-Up Period, any Sponsoring Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for unless the Registrable Securities having of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of less than at least $30 million based on the VWAP of such Registrable Securities (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) Within five Business Days of (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, Triangle the Company shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafterwithin 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 covering 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 Triangle the Company within three days of Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of such notice of the Demand Notice given by Triangle the Company pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and ). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become effective under the Securities Act 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 limitations contained in this Agreement, Triangle the Company is not obligated hereunder to effect (A) more than two a Demand Registrations in Registration within 90 days after the closing of any 12 month periodUnderwritten Offering, (B) more than a total of five four Demand Registrations pursuant to this Agreement 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, and (CE) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice Initiating Holder shall have become effective under the 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 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. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $30 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (A Holder may withdraw all or any amendment theretoportion 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 Shares such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) for a period of up to 60 days, if unless (A) the Board determines that a postponement is 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 best interest withdrawn registration of Triangle and its stockholders generally due such Registrable Securities (based on the number of securities the Initiating Holder sought to a pending transaction involving Triangleregister, as compared to the total number of securities included in such Demand Registration) or (B) the Board determines such registration would render Triangle unable withdrawal is made following the occurrence of a Material Adverse Change or pursuant to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose Company’s request for preserving as confidential (any such period, a “Blackout Period”suspension pursuant to Section 3(o); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle The Company may include in any such Demand Registration other Triangle Company Securities for sale for its own account or for the account of any other Person; provided that , subject to Section 2(a)(vi) and Section 2(c)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the managing underwriter, if any, for Initiating Holder advises the Underwritten Offering determines Company that in its reasonable opinion the type or aggregate number of Triangle Securities proposed securities requested to be offered in such offering would included exceeds the number that can be included without being likely to have an a significant adverse effect in any material respect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities proposed then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such offeringDemand Registration, the Registrable Securities Company, and (C) third, if there remains availability for additional securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or Demand Registration, any other Personholders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vivii) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible to register for resale A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities on Form S-3, in which case such accordance with the intended method or methods of disposition specified in the Demand Registration shall be effected on another appropriate form for such purpose pursuant to Notice; provided that if the Securities Act) and if Triangle Company 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 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 Trianglethe Company); provided, however, that if . If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, 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 states jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
(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 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 shall the Company be required to 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 the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (WildHorse Resource Development Corp), Registration Rights Agreement (WildHorse Resource Development Corp)
Demand Registration. (a) If the Company shall receive a written request from either DLJMB on behalf of the DLJ Entities or, in the case of a CVC Demand, CVC on behalf of the CVC Entities (the DLJ Entities or, in respect of a CVC Demand, the CVC Entities, shall be referred to herein as a "Requesting Stockholder") that the Company effect the registration under the Securities Act of all or a portion of such 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, including the CVC Demand, shall be referred to herein as a "Demand Registration") at least 15 days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the Other Stockholders and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) Any Holder that holds any the Registrable Securities shall have which the option and right, exercisable Company has been so requested to register by delivering a written notice to Triangle the Requesting Stockholder; and
(a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and ii) subject to the limitations contained restrictions set forth in this AgreementSection 5.02, prepare and file all other Registrable Securities of the same class as that requested to be registered by the Requesting Stockholder which any Other Stockholder entitled to request the Company to effect an Incidental Registration pursuant to Section 5.02 (all such Stockholders, together with the Commission a Registration Statement registering Requesting Stockholder, the offering and sale "Holders") has requested that the Company register by written request received by the Company within 15 days after the receipt by such Holders of such written notice given by the number and type of Registrable Securities on Company, all to the terms and conditions specified in extent necessary to permit the Demand Notice disposition (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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(iiaforesaid) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request so to be given registered; provided that, subject to Triangle within three days Section 5.01(d) hereof, the Company shall (i) not be obligated to effect more than five Demand Registrations for the 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 receipt of such notice 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 (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 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 any Demand Notice given by Triangle pursuant Registration unless the aggregate proceeds expected to this Section 2(a)(ii)) be received from the sale of the Common Stock to be included in such Demand Registration, in the reasonable opinion of DLJSC exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand Registration as promptly as practicable as directed 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 15-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 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 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 the participating Stockholders reimburse the Company for all costs incurred by the Initiating Holder Company in accordance connection with the terms and conditions 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 Notice Registration and use the Company shall be obligated to pay all commercially reasonable efforts 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 Registration pursuant to cause such this Section 5.01, regardless of whether it is effected.
(d) A Demand Registration Statement shall not be deemed to have occurred unless the registration statement relating thereto (A) has become effective under the Securities Act and remain (B) has remained effective under for a period of at least 180 days without being subject to any stop order, injunction, or other order or requirement of the Securities Act until Commission or any other governmental authority for any reason (or such shorter period in which all Registrable Securities covered by of the Holders requested to be included in such Registration Statement registration have actually been sold (the “Effectiveness Period”thereunder).
(iiie) Subject to If a Demand Registration involves an underwritten Public Offering and the other limitations contained managing underwriter shall advise the Company and the Requesting Stockholder that, in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month periodits view, (Bi) more than a total the number of five Demand Registrations pursuant Registrable Securities requested to this Agreement and be included in such registration (Cincluding any securities which the Company proposes to be included which are not Registrable Securities) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering or (ii) the inclusion of some or all of the Registrable Securities held owned by the Holders, in any such case, exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such 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:
(i) first, all Registrable Securities requested to be registered by the 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, among such Holders providing such Demand Notice shall have become effective under on the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales basis of the relative number and type of Registrable Securities on the terms and conditions specified so requested to be included in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”registration); providedprovided that if the Transfer Percentage of CVC is less than the Transfer Percentage of the DLJ Entities collectively at such time, howeverthe amount of Registrable Securities which will be allocable to CVC pursuant to this subsection shall be increased by an amount such that, that (i) after giving effect to the sale of all Registrable Securities in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate such offering, the Transfer Percentage of 120 days in any 12 month period, CVC would equal the Transfer Percentage of the DLJ Entities collectively;
(ii) during second, any Blackout Period contemplated securities proposed to be registered by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and Company; and
(iii) during third, any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or securities proposed to be registered for the account of any other Person; provided that if Persons with such priorities among them as the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders Company shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Persondetermine.
(vif) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3If, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a)with respect to the Common Shares or Preferred Shares, Triangle shallany Requesting Stockholder shall seek to Transfer any Warrants together with Common Shares or Preferred Shares, (A) promptly prepare the Company shall at the request of any such Stockholder effect a registration of such Warrants to which the provisions of this Article 5 shall apply mutatis mutandis and file or cause a registration, pursuant to a shelf registration statement, so as to permit the resale of the Common Shares for which any Warrants so transferred may be prepared exercisable. The Company shall maintain the effectiveness of any such shelf registration statement, and filed (1) take all actions necessary to permit resale of such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, Common Shares as may be necessary or advisable to register or qualify the required by applicable state 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, Triangle 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 thereoflaws.
Appears in 2 contracts
Sources: Investors' Agreement (Insilco Holding Co), Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Demand Registration. (ia) Any Holder that holds any Registrable Securities The Holders shall have the option and right, exercisable by delivering a written notice right after the date that is 180 days after the Distribution Date to Triangle request (a “Demand Notice,” Registration Request”) that Twin Hospitality register the offer and sale of such portion of such Holders’ Registrable Securities, as shall be specified in the Demand Registration Request, on a Registration Statement on Form S-1 or any similar long-form Registration Statement (a “Long-Form Registration”), or on a Registration Statement on Form S-3 or any similar short-form Registration Statement, which shall include a prospectus supplement to the base prospectus included in such Registration Statement on Form S-3 (a “Short-Form Registration”), at such time that Twin Hospitality qualifies to use such short form Registration Statement (any such requested Long-Form Registration or Short-Form Registration, a “Demand Registration”, and the Holder that delivers requesting such a Demand NoticeRegistration, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file by filing with the Commission SEC a Registration Statement registering the offering and sale of the number and type of covering such 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 RegistrationRegistration Statement”). The A Demand Notice must set forth Registration Request shall specify (i) the Initiating Holder(s), (ii) the aggregate number of Registrable Securities that requested to be registered in such Demand Registration, and (iii) to the extent then known, the intended method of disposition in connection with such Demand Registration. Twin Hospitality shall (A) within 10 days of the receipt of a Demand Registration Request, provide written notice of such Demand Registration (the “Company Notice”) to all Holders other than the relevant Initiating Holder intends Holder(s) (the “Eligible Holders”), (B) use its commercially reasonable efforts to file a Demand Registration Statement in respect of such Demand Registration within 60 days (in the case of a Short-Form Registration) or within 75 days (in the case of a Long-Form Registration) of receipt of such Demand Registration Request, and (C) use its commercially reasonable efforts to cause such Demand Registration Statement to become effective as soon as reasonably practicable thereafter. Twin Hospitality shall include in such Demand Registration. Notwithstanding anything Registration Statement all Registrable Securities that have been requested to be included by (x) the Initiating Holder(s) pursuant to the contrary hereinDemand Registration Request, and (y) the Eligible Holders within 10 Business Days following Twin Hospitality’s delivery of the Company Notice.
(b) Prior to the time Twin Hospitality becomes eligible to conduct a Short-Form Registration, Twin Hospitality shall not be obligated to effect more than two Long-Form Registrations in no event any calendar year. From and after the time Twin Hospitality becomes eligible to conduct a Short-Form Registration, Twin Hospitality shall Triangle not be required obligated to effectuate effect (i) any Long-Form Registrations, and (ii) more two Short-Form Registrations in any calendar year. For purposes of the immediately preceding two sentences, a Demand Registration shall be deemed to have occurred if the Demand Registration Statement relating thereto (A) has become effective under the Securities Act, (B) has remained effective for a period of at least 180 days, or such shorter period in which all Registrable Securities having included in such Demand Registration Statement have been sold thereunder or withdrawn, or, if such Demand Registration Statement relates to an aggregate value Underwritten Offering, such longer period as, in the opinion of less than $30 million based on counsel for the VWAP underwriter(s), a prospectus is required by law to be delivered in connection with sales of such Registrable Securities by an underwriter or dealer (the applicable period, the “Demand Period”), and (C) includes at least 75% of the Registrable Securities that the Initial Holder(s) and the Eligible Holders requested to be included therein. No Demand Registration Request may be made by the Holders to the extent that a Shelf Registration Statement (as defined below) (x) has been effected pursuant to the provisions of Section 8.2 and remains effective as of the date of the Demand NoticeRegistration Request, (y) registers the Registrable Securities subject to such Demand Registration Request, and (z) permits the intended method of disposition of such Registrable Securities as set forth in such Demand Registration Request.
(iic) Within five Business Days If the Underwriters’ Representative of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of a proposed Underwritten Offering under this Section 2(a)8.1 has informed Twin Hospitality (or, file in the case of a Demand Registration Statement covering all not being underwritten, the Twin Hospitality Board determines in its reasonable discretion) that, in its view, the number of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) requested to be included in such Demand Registration as promptly as practicable as directed by exceeds the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or largest number of Triangle Securities proposed shares that can be sold without being likely to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the shares offered in such offering (the “Maximum Offering Size”), then Twin Hospitality shall include in such Demand Registration: (i) first, all Registrable Securities proposed requested to be included in such offeringDemand Registration by the Initiating Holder(s), the and (ii) thereafter, and only if all Registrable Securities referred to be sold by the Holders shall in clause (i) have been included, any Registrable Securities requested to be included in such registration before Demand Registration by any Triangle Securities proposed to be sold for the account of Triangle or any other PersonEligible Holders, with such priorities among them as Twin Hospitality shall determine.
(vid) Subject No Holder may participate in any Underwritten Offering under this Section 8.1 unless such H▇▇▇▇▇ completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements, and any other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under this Section 8.1, each participating Holder shall be a party to the limitations contained in this Agreementunderwriting agreement with the underwriters, Triangle and shall effect any Demand Registration on Form S-3 be required to (except if Triangle is not then eligible i) make certain customary representations and warranties with respect to register for resale the their ownership of such Registrable Securities on Form S-3being included in such Underwritten Offering, and (ii) provide customary indemnification for the benefit of Twin Hospitality and the underwriters with respect to the information such participating Holder has provided for inclusion in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a that, such participating Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall not be required in any jurisdiction where, as a result thereof, Triangle would become subject to general service of process make representations and warranties with respect to Twin Hospitality or to taxation or qualification to do its 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 thereofoperations.
Appears in 2 contracts
Sources: Master Separation and Distribution Agreement (Twin Hospitality Group Inc.), Master Separation and Distribution Agreement (Twin Hospitality Group Inc.)
Demand Registration. (ia) Any Holder Upon the written request of the Majority Holders, requesting that holds any the Company effect the registration under the Securities Act of all or part of such Holders’ Registrable Securities shall have and specifying the option and right, exercisable by delivering a written notice to Triangle intended method of disposition thereof (a the “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall Company will promptly give written notice of such Demand Notice requested registration to all Holders andHolders, and thereupon the Company will use its reasonable best efforts to file with the SEC as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of following the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included (but in such Demand Registration as promptly as practicable as directed by no event later than the Initiating Holder in accordance with the terms and conditions of date that is 90 days after the Demand Notice and Notice) a Registration Statement. The Company shall use all commercially its reasonable best efforts to cause such Registration Statement to become be declared effective under by the Securities Act and remain effective under SEC within 90 days after the Securities Act until all initial filing of the Registration Statement. The Company shall include in such Registration Statement:
(i) the Registrable Securities covered which the Company has been so requested to be registered by such Registration Statement Holders for disposition in accordance with the intended method of disposition stated in such request;
(ii) all other Registrable Securities the holders of which shall have been sold made a written request to the Company for registration thereof within 30 days after the giving of such written notice by the Company (which request shall specify the “Effectiveness Period”intended method of disposition of such Registrable Securities).; and
(iii) Subject 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 2.2; all to the other limitations extent 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, that, the provisions of this Section 2.2 shall not require the Company to effect more than two registrations of Registrable Securities.
(b) Notwithstanding anything to the contrary contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle Company shall not be required to effect a registration or file pursuant to this Section 2.2 within 180 days following the effective date of a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) filed by the Board determines that a postponement is Company in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply accordance with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by this Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account 2.2 or for the account of any other Person; provided that another Holder of Registrable Securities if the managing underwriter, if any, for Holders were afforded the Underwritten Offering determines that the type or number of Triangle Securities proposed opportunity to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of include the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personregistration.
(vic) Subject to the limitations contained in The registrations under this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 shall be effected pursuant to an Automatic Shelf Registration Statement, which Section 2.2 shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to Triangle); provided, however, that if at any time a an appropriate Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of permits the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 disposition of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofspecified by the Majority Holders in their request for registration. The Company agrees to include in any such Registration Statement all information which Holders of Registrable Securities being registered shall reasonably request to effect the registration.
(d) A registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless a Registration Statement with respect thereto has become effective; provided, that a Registration Statement which does not become effective 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 Holder shall be deemed to have been effected by the Company at the request of the Majority Holders unless the Holders electing to have Registrable Securities 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 2.7, (ii) if, after it has become effective, 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 Statement’s effectiveness, or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied, other than due solely to some act or omission by the Holders electing to have Registrable Securities registered pursuant to such Registration Statement.
(e) If a requested registration pursuant to this Section 2.2 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) that, in its opinion, 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 within a price range reasonably acceptable to the Company and to the holders of a majority (by number of shares) of the Registrable Securities requested to be included in such Registration Statement, the Company will include in such registration, to the extent of the number which the Company is so advised can be sold in such offering, (i) first, the Registrable Securities which have been requested to be included in such registration by the Holders pursuant to this Agreement (pro rata based on the amount of Registrable Securities sought to be registered by such Persons), (ii) second, provided that no securities sought to be included by the Holders have been excluded from such registration, the securities of other Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company (pro rata based on the amount of securities sought to be registered by such Persons) and (iii) third, securities the Company proposes to register.
(f) The Company shall use its reasonable best efforts to keep any Registration Statement filed pursuant to this Section 2.2 continuously effective (i) for a period of one year after the Registration Statement first becomes effective, plus the number of days during which such Registration Statement was not effective or usable pursuant to Sections 2.2(g), 2.5(e) or 2.5(i); or (ii) if such Registration Statement related to an underwritten offering, for such period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer. In the event the Company shall give any notice pursuant to Sections 2.5(e) or (i), the additional time period mentioned in this Section 2.2(f)(i) during which the Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Sections 2.5(e) or (i) to and including the date when each seller of a Registrable Security covered by the Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Sections 2.5(e) or (i).
(g) The Company shall have the right at any time, to suspend the filing of a Registration Statement under this Section 2.2 or require that the Holders of Registrable Securities suspend further open market offers and sales of Registrable Securities pursuant to a Registration Statement filed hereunder for a period not to exceed an aggregate of 30 days in any six-month period or an aggregate of 60 days in any twelve-month period for valid business reasons (not including avoidance of their obligations hereunder) (i) to avoid premature public disclosure of a pending corporate transaction, including pending acquisitions or divestitures of assets, mergers and combinations and similar events; (ii) upon the occurrence of any of the events specified in Section 2.5(e), until the time that the Holders receive copies of a supplement or amendment to the prospectus included in the applicable Registration Statement as contemplated in Section 2.5(e); and (iii) upon the occurrence of any of the events specified in Section 2.5(i), until the time the Company notifies the Holders in writing that such suspension is no longer effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Elio Motors, Inc.), Registration Rights Agreement (Elio Motors, Inc.)
Demand Registration. At any time ninety (i90) Any Holder that holds any days after the closing of the Offering, the holders of a majority of the Registrable Securities shall have then outstanding may request registration under the option Securities Act of all of the Registrable Securities that are not then registered on an existing and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a effective Registration Statement registering the for an 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 to be made on a delayed or continuous basis pursuant to Rule 415 415, on Form S-3 or any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the resale by the Holders of all of the Registrable Securities (each, a “Demand Registration”). The Demand Notice must set forth Upon receipt of such request, the number Company shall promptly (but in no event later than twenty (20) calendar days after receipt of such request) deliver notice of such request to all other holders of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event who shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of then have ten (10 calendar days from the date of such notice is given to notify the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall Company in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) their desire to be included in such Demand Registration as promptly as practicable as directed by registration. The Company shall (i) use its commercially reasonable efforts to make the Initiating Holder in accordance with the terms and conditions initial filing of the Demand Notice and Registration Statement within ninety (90) calendar days after the date on which the initial request is given] (ii) use all its commercially reasonable efforts to cause such Registration Statement to become be declared effective by the Commission as soon as practicable thereafter, and (iii) use its commercially reasonable efforts to keep such Registration Statement effective until the date on which all securities under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
. The Registration Statement filed hereunder shall contain (iiiexcept if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) Subject that “Plan of Distribution” in substantially the form attached hereto as Annex A. Notwithstanding the foregoing, in the event that the staff (the “Staff”) of the Commission should limit the number of Registrable Securities that may be sold pursuant to the other limitations contained in this AgreementRegistration Statement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a the Company may remove from the Registration Statement covering such number of Registrable Securities as specified by the Commission on behalf of all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type holders of Registrable Securities on a pro rata basis among the terms and conditions specified in holders thereof. In such event, the Demand Notice in accordance with Company shall give the intended timing and method or methods Purchasers prompt notice of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision number of this Section 2(a), Triangle Registrable Securities excluded therefrom. The Company shall not be required to effect a registration or file a Registration Statement pursuant to Form S-3 (or any amendment thereto) other form for a period of up to 60 days, if (A) which the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws Company then qualifies or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether which counsel for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, Company shall deem appropriate and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle which form shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or be available for the account resale by the Holders of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution all of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold Securities) more than two (2) times for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling holders 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereofgroup.
Appears in 2 contracts
Sources: Registration Rights Agreement (Avinger Inc), Registration Rights Agreement (Avinger Inc)
Demand Registration. Notwithstanding any other provisions of this Section 3, in no event shall more than one (i1) Any Holder that holds Demand Registration occur during any Registrable Securities shall have six-month period (measured from the option and right, exercisable by delivering a written notice effective date of the Registration Statement to Triangle (a “the date of the next Demand Notice,” and ) or within 180 days after the effective date of a Registration Statement filed by the Company. No Demand Registration shall be deemed to have occurred for purposes of this Section 3(a) if the Registration Statement relating thereto does not become effective or is not maintained effective for the period required pursuant to this Section 3(a), in which case the Demanding Qualified Holder that delivers such Group shall be entitled to an additional Demand Registration in lieu thereof. Within ten (10) days after receipt by the Company of a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle Company shall give written notice (the “Notice”) of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, holders of Registrable Securities and shall, subject to the limitations provisions of this Section 2(a)3(b) hereof, file a Registration Statement covering include in such registration all of the Registrable Securities that with respect to which the Holders shall in writing request Company received written requests for inclusion therein within ten (10) days after such request to be given to Triangle within three days of receipt of such notice of the Demand Notice is given by Triangle the Company to such holders. All requests made pursuant to this Section 2(a)(ii)) 3 will specify the amount of Registrable Securities to be included in such Demand Registration as promptly as practicable as directed by registered and the Initiating Holder in accordance with the terms and conditions intended methods of the Demand Notice and disposition thereof. The Company shall use all its commercially reasonable efforts to cause such maintain the effectiveness of the Registration Statement (except in the case of a Shelf Registration Statement) with respect to become any Demand Registration for a period of at least one hundred eighty (180) days after the effective under the Securities Act and remain effective under the Securities Act until date thereof or such shorter period in which all Registrable Securities covered by included in such Registration Statement have actually been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”)sold; provided, however, that (i) in no event such period shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriterbe extended, if anyreasonably practicable, for a period of time equal to the Underwritten Offering determines that period the type or number holders of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be refrain from selling any securities included in such offering, Registration Statement at the Registrable Securities to be sold by request of (x) an underwriter or (y) the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose Company pursuant to the Securities Act) and if Triangle becomes, and is at provisions herein. The Company shall use its commercially reasonable efforts to maintain the time of its receipt effectiveness of a Demand Notice, Registration Statement that constitutes 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 Statement at all times during the Securities Act (if available to Triangle)Effectiveness Period; provided, however, that if at any time Holder of Registrable Securities that has been included in a Shelf Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle may request that it intends to effect an offering of all or part of the such Registrable Securities included on be removed from such Shelf Registration Statement, Triangle will amend or supplement in which event the Company shall promptly either withdraw such Shelf Registration Statement or file a post-effective amendment to such Shelf Registration Statement removing such Registrable Securities. Notwithstanding anything contained herein to the contrary, the Company hereby agrees that (i) each Shelf Registration Statement filed by the Company pursuant to this Section 3 shall contain all language (including, without limitation, on the Prospectus cover page, the principal stockholders’ table and the plan of distribution) as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 an Investor Qualified Holder to allow for distribution to, and resale by, the Holders direct and indirect partners, investors or affiliated entities of an Investor Qualified Holder (a “Partner Distribution”) and (ii) the Company shall, at the reasonable request of any Investor Qualified Holder seeking to enable effect a Partner Distribution, file any Prospectus supplement or post-effective amendments and otherwise take any action reasonably necessary to include such language, if such language was not included in the Holders initial Shelf Registration Statement, or revise such language if deemed necessary by such Investor Qualified Holder to consummate a public sale of effect such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofPartner Distribution.
Appears in 2 contracts
Sources: Registration Rights Agreement (Extraction Oil & Gas, Inc.), Registration Rights Agreement (Extraction Oil & Gas, LLC)
Demand Registration. (ia) Any If at any time after the filing of the Initial Registration Statement, the Company receives a request from Holder that holds any of Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle then outstanding (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the an “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), Company file a Registration Statement covering all of the with respect to outstanding Registrable Securities that of such Initiating Holder not already covered by an existing Registration Statement, then the Holders shall in writing request Company shall, (i) within ten (10) days after the date such request is given, give notice to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by all Holders other than the Initiating Holder Holder, and (ii) as soon as practicable, and in accordance with any event within sixty (60) days after the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause date such Registration Statement to become effective request is given, file a Form S-3 registration statement under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle the Company is not then eligible ineligible to register for resale of the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 shall be effected pursuant to an Automatic Shelf Registration Statement, which registration shall be on Form S-3 or such other form available to the Company to register for resale of the Registrable Securities as a secondary offering) subject to the provisions of Section 3(d) covering all Registrable Securities requested to be included in such registration by the Initiating Holder and any equivalent or successor form other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the notice pursuant to clause (i) above is given, and in each case, subject to the limitations of Sections 3(b) and (c). The Company shall use its commercially reasonable best efforts to cause such Registration to be declared effective under the Securities Act as promptly as practicable after the filing thereof. Upon the request of any Holder that Registrable Securities be registered pursuant to this Section 3(a), all such Registrable Securities shall thereafter be Registrable Securities for all purposes under this Agreement.
(b) If Tricadia Capital Management, LLC (“Tricadia”) intends to distribute the Registrable Securities registered pursuant to Section 3(a) by means of an underwriting, it shall so advise the Company as a part of its request made pursuant to this Section 3 and the Company shall include such information in the written notice referred to in subsection 1.2(a). The underwriter will be selected by Tricadia and shall be reasonably acceptable to the Company. In such event, the right of any other Holder to include its, his or her 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 (unless otherwise mutually agreed by the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 3, if available the managing underwriter(s) advises Tricadia and the Company in writing that marketing factors require a limitation of the number of shares to Triangle)be underwritten, then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities of Holders other than the Initiating Holder that may be included in the underwriting shall be allocated among all such Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each such Holder.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 3 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such Registration Statement to either become effective or remain effective for as long as such Registration Statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than ninety (90) days after the request of the Initiating Holder is given; provided, however, that if at the Company may not invoke this right more than once in any twelve (12) month period; and provided further that (x) the Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period other than pursuant to a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (y) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (z) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 3(a) (i) during the period that is thirty (30) 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, a Company-initiated registration, provided, that the Company is actively employing in good faith commercially reasonable best efforts to cause such registration statement to become effective or (ii) prior to January 1, 2015 with respect to a distribution of Registrable Securities by means of an underwriting .
(e) In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 promptly after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of covering the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 has been declared effective 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 thereofCommission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cordia Bancorp Inc), Securities Purchase Agreement (Cordia Bancorp Inc)
Demand Registration. (ia) Any Holder that holds At any time after 180 days after the date issuance of the Series 1 Shares, holders of a majority of the Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission then outstanding may request a Registration Statement registering the offering and sale of at least 50% of the number and type of outstanding 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 Each request for a Demand Notice must set forth Registration shall specify the approximate number of Registrable Securities that required to be registered. Upon receipt of such request, the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, Company shall promptly (but in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less later than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii15 days following receipt thereof) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written deliver notice of such Demand Notice request to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations other holders of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that who shall then have 15 days from the Holders shall date such notice is given to notify the Company in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) their desire to be included in such Demand Registration. The Company shall cause a Registration as promptly as practicable as directed by Statement to be filed within 60 days after the Initiating Holder in accordance with date on which the terms initial request is given and conditions of the Demand Notice and shall use all commercially reasonable efforts to cause such Registration Statement to become be declared effective under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle Commission as soon as practicable thereafter. The Company shall not be required to effect a registration or file Demand Registration more than once for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Demand Registration requested under Section 2(a) unless and until it has become effective.
(b) The Company shall not be obligated to effect any Demand Registration within 180 days after the effective date of a previous Piggyback Registration (as defined below) in which holders of Registrable Securities were permitted to register, and actually sold, at least 50% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to 90 days the filing or any amendment thereto) effectiveness of a Registration Statement for a period of up to 60 days, Demand Registration if (A) the Company’s Board determines in its reasonable good faith judgment that such Demand Registration would (i) materially interfere with a postponement is in the best interest of Triangle and its stockholders generally due to a pending significant acquisition, corporate organization or other similar transaction involving Triangle, the Company; (Bii) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require premature disclosure of material information that Triangle the Company has a bona fide business purpose for preserving as confidential confidential; or (any such period, a “Blackout Period”)iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, howeverthat in such event the holders of a majority of the Registrable Securities initiating such Demand Registration shall be entitled to withdraw such request and, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month periodif such request is withdrawn, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle such Demand Registration shall not engage in any transaction involving count as the offer, issuance, sale, or purchase of Triangle Securities (whether for one permitted Demand Registration hereunder and the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or Company shall pay all registration expenses in connection with the conversion or exercise such registration. The Company may delay a Demand Registration hereunder only twice in any period of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rightstwelve consecutive months.
(vc) Triangle may include in any such If the holders of the Registrable Securities initially requesting a Demand Registration elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), and the Company shall include such information in its notice to the other Triangle holders of Registrable Securities. The holders of a majority of the Registrable Securities for sale for its own account initially requesting the Demand Registration shall select the investment banking firm or for the account of any other Person; provided that if firms to act as the managing underwriterunderwriter or underwriters in connection with such offering; provided, if anythat such selection shall be subject to the consent of the Company, for which consent shall not be unreasonably withheld or delayed.
(d) If a Demand Registration involves an underwritten offering and the Underwritten Offering determines managing underwriter of the requested Demand Registration advises the Company and the holders of Registrable Securities in writing that in its opinion the type or number of Triangle Securities shares of Common Stock proposed to be offered included in the Demand Registration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such registration would likely have an adverse effect in any material respect on adversely affect the price, timing or distribution price per share of the Registrable Securities proposed to be included sold in such underwritten offering, the Company shall include in such Demand Registration (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be sold included therein by the Holders shall be included in such registration before any Triangle Securities proposed other Persons (including shares of Common Stock to be sold for the account of Triangle or any the Company and/or other Person.
(viholders of Common Stock) Subject to allocated among such Persons in such manner as they may agree. If the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, managing underwriter determines that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of less than all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause proposed to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may sold can 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, Triangle would become subject to general service of process or to taxation or qualification to do business included in such jurisdiction solely as a result of registration and (2) such formsoffering, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list then the Registrable Securities subject to that are included in such Demand Registration offering shall be allocated pro rata among the respective holders thereof 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 basis of the Holders to enable the Holders to consummate a public sale number of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofowned by each such holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Kingsway Financial Services Inc), Registration Rights Agreement (Kingsway Financial Services Inc)
Demand Registration. (ia) Any In the event that the S-1 Registration Statement is not filed by the Company by April 30, 2005 pursuant to Section 1.2 hereof, a Holder or Holders shall be entitled to initiate registration request hereunder (“Initiating Holders) The Initiating Holders shall so advise the Company in writing that holds any the Company file a registration statement under the Act registering the Registrable Securities Securities. The Company shall have file a Form S-1 Registration Statement no later than 45 days from the option date of such registration request and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” be declared effective not later than 90 days from the date thereof. The Company and the Holder shall further agree that delivers such a Demand Notice, filing will satisfy the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be piggyback registration rights given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle Holder pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that such inclusion satisfies such obligation only if the registration statement is declared effective not later than 90 days from the date of the request from the Initiating Holders.
(ib) in no event Notwithstanding the foregoing, if the Company shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file furnish to Holders requesting a registration statement (or any amendment or supplement thereto) pursuant to this Section 1.3, 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 and its stockholders for any other holder such registration statement to be filed owing to a material pending transaction and it is therefore essential to defer the filing of such registration rightsstatement, the Company shall have the right to defer taking action with respect to such filing for a period of not more than 120 days after receipt of the request of the Initiating Holders.
(vc) Triangle may include In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 1.3 in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such Demand Registration other Triangle Securities for sale for its own account registration, qualification or for compliance, unless the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed Company is already subject to be offered service in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (jurisdiction and except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereofAct.
Appears in 2 contracts
Sources: Subordinated Convertible Debenture Purchase Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Miscor Group, Ltd.)
Demand Registration. Notwithstanding anything herein to the contrary, and in addition to its obligations under Section 3(a) hereinabove, the Company shall:
(i) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering after receipt of a written notice to Triangle request from the Holder requesting that the Company effect a registration (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii") Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all or part of the Registrable Securities held by such Holder which specifies the Holders providing such intended method or methods of disposition thereof, as expeditiously as is possible, but in any event no later than 90 days after receipt of a written request for a Demand Notice shall have become Registration, file with the SEC and use its reasonable best efforts to cause to be declared effective under the Securities Act and remains effective under the Securities Act and is sufficient as soon as reasonably practicable, a registration statement (a "Demand Registration Statement") relating to permit offers and sales of the number and type all shares of Registrable Securities on which the terms and conditions specified in Company has been so requested to register by the Demand Notice Holder for sale, to the extent required to permit the disposition (in accordance with the intended timing and method or methods thereof, as aforesaid) of distribution thereof specified in the Demand NoticeRegistrable Securities so registered.
(ivii) Notwithstanding If the Company is eligible to use Form S-3, any other provision Demand Registration Statement may be required by the Holder to be in an appropriate form under the Securities Act relating to any or all of this Section 2(athe Registrable Securities in accordance with the methods and distribution set forth in the Form S-3 and Rule 415 under the Securities Act (the "Shelf Registration"), Triangle . Any such demand to file a Form S-3 shall require the use of one Demand Registration. The Holder shall be entitled to an aggregate of two registrations of Registrable Securities.
(iii) The Company shall not be required to effect a registration or file a Registration Statement pursuant to this Section 3:
(or any amendment thereto1) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due pursuant to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure written opinion of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether counsel for the benefit of Triangle or a third Person)Company, except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of all the Registrable Securities proposed to be included in such offering, the Registrable Securities to can be sold by pursuant to Rule 144 in any three month period (such date being the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person."144 Sale Date"); or
(vi2) Subject during the period starting with the date 45 days prior to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomesCompany's estimated date of filing of, and is at ending on the time date 90 days immediately following the effective date of, any registration statement pertaining to an underwritten public offering of its receipt newly issued securities of a Demand Notice, a WKSI, the Demand Registration for any offering and selling Company with respect to which the Holder has the right to request inclusion 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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, provided that the Company is actively employing in connection with any Demand Registration pursuant good faith commercially reasonable efforts to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause such registration 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereofeffective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Digital Lifestyles Group Inc), Registration Rights Agreement (Digital Lifestyles Group Inc)
Demand Registration. Subject to Sections 3.1(d) and 3.2 hereof, at any time after the date that is 180 days after the IPO Closing Date, if one or more Designated Holders (ithe “Initiating Holders”) Any Holder that holds any desire to exercise their Registration Rights with respect to the Registrable Securities shall have Securities, such Initiating Holders may deliver to the option and right, exercisable by delivering Company a written notice to Triangle (a “Demand Registration Notice,” ”) informing the Company of their desire to have the Registrable Securities registered for sale and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 specifying the number and type of Registrable Securities on to be registered by 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 Company (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. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the Upon receipt of the Demand Registration Notice, Triangle if the Company is not able to cause the Registrable Securities to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the Commission and which remains in effect and not subject to any stop order, injunction or other order or requirement of the Commission (the “Shelf Registration Statement”) (in which event the Company shall give written notice of such Demand Notice be deemed to all Holders have satisfied its registration obligation under this Section 3.1(a) with respect to the Registrable Securities, and, for the avoidance of doubt, such registration shall not be deemed a Demand Registration), then the Company shall cause to be filed with the Commission as soon as reasonably practicable thereafterafter receiving the Registration Notice, shallbut in no event more than thirty (30) days following receipt of such notice, a new registration statement and related prospectus (the “New Registration Statement”) that complies as to form in all material respects with applicable Commission rules providing for the sale by the Designated Holders of the Registrable Securities, and agrees (subject to Section 3.2 hereof) to use reasonable best efforts to cause the limitations of New Registration Statement and Related Prospectus to be declared and remain effective by the Commission as soon as practicable. (As used herein, “Registration Statement” and “Prospectus” refer to a registration statement and related prospectus (including any preliminary prospectus) filed pursuant to the Securities Act utilized by the Company to satisfy a Designated Holder’s Registration Rights pursuant to this Section 2(aAgreement, including, but not limited to, a Shelf Registration Statement and related prospectus (including any preliminary prospectus) or a New Registration Statement and related prospectus (including any preliminary prospectus), file a including, in each case, any documents incorporated therein by reference). Subject to Section 3.2 hereof, the Company agrees to use commercially reasonable efforts to keep the Registration Statement covering continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date that is two (2) years after the date of effectiveness of the Registration Statement, (ii) the date on which all of the Registrable Securities that the Holders shall registered in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle Registration are eligible for sale without registration pursuant to this Section 2(a)(ii)Rule 144 (or any successor provision) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
without volume limitations or other restrictions on transfer thereunder, or (iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering date on which all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the 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 on the terms and conditions specified registered in the Demand Registration are sold. Notwithstanding the foregoing, the Company may at any time prior to receiving a Registration Notice from a Designated Holder, but subject to the prior consent of the Designated Holders, include all of the Designated Holders’ Registrable Securities or any portion thereof in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
any Registration Statement (iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file than a Registration Statement (on Form S-4 or S-8 or any amendment successor thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase including by virtue of Triangle adding such Registrable Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand additional securities to an existing Shelf Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose Statement pursuant to the Securities ActRule 462(b) and if Triangle 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 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 in which event the Company shall be deemed to Trianglehave satisfied its registration obligation under this Section 3.1(a) with respect to the Registrable Securities so included, so long as such registration statement remains effective and not the subject of any stop order, injunction or other order of the Commission); provided, however, that if at any time such registration shall not constitute a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (QTS Realty Trust, Inc.), Registration Rights Agreement (QTS Realty Trust, Inc.)
Demand Registration. (i) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its Following receipt of a Demand Notice, a WKSI, the Demand Registration Company shall:
(i) give written notice of such request for any offering and selling registration to all Holders of Registrable Securities shall within fifteen (15) days after receipt of such Demand Notice;
(ii) cause to be effected pursuant filed, as soon as practicable, a Registration Statement covering such Registrable Securities that the Company has been so requested to an Automatic Shelf Registration Statementregister by the Requesting Holders and other Holders of Registrable Securities who make a request to the Company, which shall 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 on Form S-3 or any equivalent or successor form registered, providing for the registration under the Securities Act (if available to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the such Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 extent necessary to apply for listing or to list permit 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 disposition of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofspecified 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 requested to be registered 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; and
(v) if the Company shall have previously effected a Demand Registration pursuant to Section 1.2, the Company shall not be 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 Holders, the Company shall facilitate up to two (2) “takedowns” of Registrable Securities in the form of an underwritten offering utilizing the Shelf Registration Statement, in the manner and subject to the conditions described in Sections 1.2(b)(iv), 1.2(c), 1.2(e) and 1.2(f) of this Agreement, provided, that, the Company will not be required to effect 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 Statement, the Company 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 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 utilized for the offering and sale of the Registrable Securities requested to be registered.
Appears in 2 contracts
Sources: Registration Rights Agreement (Chicago Atlantic Real Estate Finance, Inc.), Registration Rights Agreement (AFC Gamma, Inc.)
Demand Registration. (ia) Any Holder that holds At any Registrable Securities time following the expiration of the Disposition Restriction Period, if the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 5.1 hereof, the Investors’ Representative shall have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant the Company to the terms of register under 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 in accordance with the intended timing provisions of the Securities Act the number of Registrable Securities Beneficially Owned by any Investors and method or methods of distribution thereof specified in the requested by such Demand Notice, which may include sales on a delayed or continuous basis pursuant Notice to Rule 415 be so registered (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities ; provided, however, that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event Company shall Triangle not be required to effectuate effect more than two (2) Demand Registrations for underwritten offerings pursuant to this Section 5.2(a); and, provided, further, that the Investors shall not be entitled to deliver to the Company more than one (1) Demand Registration in any twelve (12) month period and, in any event, a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on Notice may only be made if the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all sale of the Registrable Securities requested to be registered by the Investors’ Representative is reasonably expected to result in aggregate gross cash proceeds in excess of $100,000,000 (without regard to any underwriting discount or commission); and provided, further that the Holders Investors shall not be entitled to request more than two (2) Company Supported Distributions in writing request the aggregate (such request to be given to Triangle within three days including underwritten Demand Registrations). 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 later than 30 days after receipt by the Company of such notice Demand Notice, a Registration Statement relating to the offer and sale of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) Registrable Securities requested to be included in such Demand Registration as promptly as practicable as directed therein by the Initiating Holder Investors thereof in accordance with the terms methods of distribution elected by such Investors (a “Demand Registration Statement”) and conditions of the Demand Notice and shall use all commercially reasonable efforts to cause such Registration Statement to become be declared effective under the Securities Act and remain effective under as promptly as practicable after the Securities Act until all filing thereof, it being agreed that if any Investor intends to distribute any Registrable Securities covered by means of an underwritten offering it shall promptly so advise the Company and the Company shall cooperate with such Registration Statement have been sold (Investor to facilitate such distribution, including but not limited to the “Effectiveness Period”actions required pursuant to Section 5.5(a)(viii) and, if a Company Supported Distribution is requested, Section 5.5(a)(xiv).
(iiib) Subject to If any of the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration Registrable Securities registered pursuant to a Demand Notice if Registration are to be sold in a Registration Statement covering all firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Registrable Securities held by Investors in writing that it is their good faith opinion that the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the total number and type or dollar amount 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered sold in such offering would likely have offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be so included in together with all such offeringOther Securities, the Registrable Securities to be sold by the Holders then there shall be included in such registration before firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Investors, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Investor; and
(ii) second, among any Triangle holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities; provided that, in the event that, due to a cutback in accordance with this clause (c), Investors are unable to sell at least 90% of the Registrable Securities initially proposed to be sold for in a Company Supported Distribution, such offering shall not constitute a Company Supported Distribution and count against the account of Triangle or any other Personlimit thereof.
(vic) Subject In the event of a Demand Registration, the Company shall be required to maintain the limitations contained continuous effectiveness of the applicable Registration Statement for a period of at least 180 days after the effective date thereof or such shorter period in this Agreement, Triangle which all Registrable Securities included in such Registration Statement have actually been sold.
(d) The Investors’ Representative shall effect any have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3be abandoned or withdrawn, in which case event the Company shall promptly abandon or withdraw such Registration Statement and such withdrawn registration shall not count against the limit of Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomesRegistrations or Company Supported Distributions, 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 Triangle)as applicable; provided, however, that if the Company shall not be required to pay for expenses of any registration proceeding begun pursuant to Section 5.2(a) hereof, which has been subsequently withdrawn pursuant to this Section 5.2(d) at any time a the request of the Investors’ Representative, and shall be reimbursed by the Investors whose Registrable Securities were intended to be included in the Demand Registration Statement on Form S-3 for reasonable and documented out-of-pocket expenses (including legal fees and printing expenses) so incurred, unless the withdrawal is effective and a Holder provides written notice based upon material adverse information concerning the Company that the Company has not publicly disclosed at least five (5) Business Days prior to Triangle that it intends to effect an offering the Company’s receipt of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placewithdrawal request.
(viie) Without limiting Notwithstanding anything contained herein to the contrary, with the prior written consent of the Investors’ Representative (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall be entitled to coordinate any offerings under this Section 3, in connection 5.2 with any Demand Registration offerings to be effected pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 similar agreements with the intended timing and method or methods holders of distribution thereofOther Securities, including, if practicable, by filing one Registration Statement for all Other Securities.
Appears in 2 contracts
Sources: Stockholders Agreement (Phillips Van Heusen Corp /De/), Shareholder Agreement (Tommy Hilfiger Holding Sarl)
Demand Registration. (a) (i) Any Holder that holds any Registrable Securities SAP and its Affiliated Companies shall have the option and right, exercisable after the 180 day period following the IPO Date (or such other period as may be requested by delivering a written notice the Company or an underwriter to Triangle facilitate compliance with applicable FINRA rules, or any successor provisions or amendments thereto), and (ii) Silver Lake and its Affiliated Companies shall have the right, after the two year period following the IPO Date, to request in writing (a “Demand Notice,” Request”) (which request shall specify the Registrable Securities intended to be disposed of by such requesting Holder, and the Holder that delivers intended method of distribution thereof, including in a Rule 415 Offering, if the Company is then eligible to register such a Demand Notice, the “Initiating Holder”), to require Triangle 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 Form S-3 (or a successor form) for such offering) that the terms and conditions Company register such portion of the requesting Holder’s Registrable Securities as shall be 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 Request (a “Demand Registration”). The Demand Notice must set forth ) by filing with the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders andSEC, as soon as reasonably practicable (the “Filing Date”) after the receipt of such a Request by the Company, a registration statement (a “Demand Registration Statement”) covering such Registrable Securities, and the Company shall use its reasonable best efforts to have such Demand Registration Statement become effective with the SEC concurrently with filing or as soon as practicable thereafter, shalland, subject to the limitations of this Section 2(a)3.4, file a to keep such Demand Registration Statement covering Continuously Effective for a period of at least 24 months, in the case of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days following the date on which such Demand Registration Statement is declared effective (or for such shorter period which will terminate when all of the Registrable Securities covered by such Demand Registration Statement shall have been sold pursuant thereto) (provided that such period shall be extended for a period of time equal to the Holders shall in writing request (such request to be given to Triangle within three days period the Holder of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the Underwriters’ Representative pursuant to the provisions of this Agreement), including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Demand Registration as promptly as practicable as directed 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 Initiating Holder in accordance with rules, regulations or instructions applicable to the terms registration form used by the Company for such Demand Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and conditions of regulations thereunder; provided, that such period during which the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement shall remain Continuously Effective shall, in the case of an Underwritten Offering, and subject to become effective under Section 3.4, be extended for such period (if any) as the Securities Act and remain effective under underwriters shall reasonably require, including to satisfy, in the Securities Act until all Registrable Securities covered judgment of counsel to the underwriters, any prospectus delivery requirements imposed by such Registration Statement have been sold (the “Effectiveness Period”)applicable law.
(iiib) Subject to the other limitations contained in this Agreement, Triangle is The Company shall not be obligated hereunder to effect (A) more than two Demand Registrations in any 12 month periodcalendar year for Silver Lake or more than one Demand Registration for SAP in any calendar quarter. For purposes of the preceding sentence, a Demand Registration shall not be deemed to have been effected for SAP and its Affiliated Companies or Silver Lake and its Affiliated Companies (and, therefore, not requested for purposes of paragraph (a) above), (Bi) more than unless a total Demand Registration Statement with respect thereto has become effective, (ii) if after such Demand Registration Statement has become effective, the offer, sale or distribution of five Demand Registrations Registrable Securities thereunder is prevented by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason not attributable to SAP or its Affiliated Companies, or to Silver Lake or its Affiliated Companies, as the case may be, and such effect is not thereafter eliminated or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with any offering pursuant to this Agreement such registration are not satisfied or waived other than by reason of a failure on the part of SAP or its Affiliated Companies, or Silver Lake and (C) its Affiliated Companies, as the case may be. If the Company shall have complied with its obligations under ARTICLE III, a subsequent right to a Demand Registration pursuant to a Demand Notice if a Registration Statement covering this Section 3.1 shall be deemed to have been satisfied upon the earlier of (i) the date as of which all of the Registrable Securities held by included therein shall have been sold to the Holders providing underwriters or distributed pursuant to the Demand Registration Statement and (ii) the date as of which such Demand Notice Registration Statement shall have become been effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales for an aggregate period of the number and type of Registrable Securities on the terms and conditions specified at least 24 months, in the Demand Notice case of a Rule 415 Offering, or, in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any all other provision of this Section 2(a)cases, Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up at least 180 days following the effectiveness of such Demand Registration Statement; provided that such period shall be extended for a period of time equal to 60 daysthe period the Holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the Underwriters’ Representative pursuant to the provisions of this Agreement.
(c) Any request made pursuant to this Section 3.1 shall be addressed to the attention of the General Counsel of the Company and shall specify the number of Registrable Securities to be registered (which shall be not less than 0.5% of the outstanding shares of Company Common Stock).
(d) Without the prior written consent of SAP, the Company may not include in a Demand Registration pursuant to this Section 3.1 shares of Company Capital Stock for the account of the Company or any Subsidiary of the Company, but, if and to the extent required by a contractual obligation (including Section 3.2), may, subject to compliance with Section 3.1(e), include shares of Company Capital Stock for the account of any other Person who holds shares of Company Capital Stock entitled to be included therein (including any other Holder entitled to be included therein pursuant to Section 3.2); provided, that if the Underwriters’ Representative of any offering described in this Section 3.1 shall have informed the Company and/or the Holder making the Request in writing that in its judgment there is a Maximum Number of shares of Company Capital Stock that SAP and its Affiliated Companies, Silver Lake and its Affiliated Companies, all other Holders and any other Persons entitled to participate in such Demand Registration may include in such offering, then the Company shall include in such Demand Registration: (i) first, (A) the Board determines that a postponement is in the best interest number of Triangle Registrable Securities held by SAP and its stockholders generally due Affiliated Companies (“SAP Securities”), if any, up to a pending transaction involving Triangle1% of the aggregate outstanding Company Capital Stock, that are requested to be included in such registration, (B) the Board determines number of Registrable Securities held by Silver Lake and its Affiliated Companies (“Silver Lake Securities”), if any, up to 1% of the aggregate outstanding Company Capital Stock, that are requested to be included in such registration would render Triangle unable to comply with applicable securities laws or and (C) the Board determines number of Registrable Securities held by Q II and its Affiliated Companies (“Q II Securities”), if any, up to 0.25% of the aggregate outstanding Company Capital Stock, that are requested to be included in such registration would require disclosure pursuant to Section 3.2 (clauses (A)-(C) collectively, the “Cap Amount”), except that if the number of material information shares of Company Capital Stock that Triangle has may be included in such registration is less than the Cap Amount, the reduction shall be applied pro rata among the SAP Securities, Silver Lake Securities and Q II Securities based on each of their pro rata share of the Cap Amount (i.e., 44.44% SAP Securities/44.44% Silver Lake Securities/11.12% Q II Securities); (ii) second, up to the full number of SAP Securities in excess of the Cap Amount, if any, that are requested to be included in such registration; (iii) third, up to the full number of Silver Lake Securities and Q II Securities in excess of the Cap Amount, if any, that are requested to be included in such registration on a bona fide business purpose for preserving as confidential pro rata basis based on the number of shares of Company Capital Stock held by such Holders; (iv) fourth, such number of shares of Company Capital Stock duly requested to be included in such registration by other Persons, pro rata on the basis of the amount of such other shares of Company Capital Stock requested to be included or such other allocation method determined by the Company; and (v) fifth, securities the Company proposes to sell.
(e) No Holder may participate in any Underwritten Offering under this Section 3.1 and no other Person shall be permitted to participate in any such periodoffering pursuant to this Section 3.1 unless it completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under Section 3.1 hereof, each participating Holder and the Company and, except in the case of a “Blackout Period”Rule 415 Offering hereof, each other Selling Holder shall be a party to the underwriting agreement with the underwriters and may be required to make certain customary representations and warranties and provide certain customary indemnifications for the benefit of the underwriters.
(f) Any Holder having requested the Company to include any or all of its Registrable Securities in a registration statement under the Securities Act pursuant to Section 3.1 or Section 3.2 shall have the right to withdraw any such notice or direction with respect to any or all of the Registrable Securities designated by it for registration by giving written notice to such effect to the Company prior to the effective date of such registration statement. In the event of any such withdrawal, the Company shall not include such Registrable Securities in the applicable registration and such Registrable Securities shall continue to be Registrable Securities for all purposes of this Agreement (subject to the other terms and conditions of this Agreement). No such withdrawal shall affect the obligations of the Company with respect to the Registrable Securities not so withdrawn if any other Holder has requested pursuant to Section 3.1 or Section 3.2 that Registrable Securities be included in such registration; provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate the case of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriterRegistration, if any, for such withdrawal shall reduce the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed sought to be included in such offeringregistration below 0.5% of the outstanding shares of Company Common Stock, then the Company shall as promptly as practicable give each Holder seeking to register Registrable Securities notice to such effect and, within ten days following the mailing of such notice, such Holders still seeking registration shall, by written notice to the Company, elect to register additional Registrable Securities to be sold by satisfy the Holders shall be included in foregoing minimum offering size or elect that such registration before any Triangle Securities proposed to statement not be sold for filed or, if theretofore filed, be withdrawn. During such ten day period, the account of Triangle or any other Person.
(vi) Subject to Company shall not file such registration statement if not theretofore filed or, if such registration statement has been theretofore filed, the limitations contained in this Agreement, Triangle Company shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomesseek, and is at the time of its receipt of a Demand Notice, a WKSIshall use reasonable best efforts to prevent, 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 effectiveness thereof.
Appears in 2 contracts
Sources: Stockholders’ Agreement (Silver Lake Group, L.L.C.), Stockholders’ Agreement (Qualtrics International Inc.)
Demand Registration. (i) Any Holder that holds any Registrable Securities shall have Upon the option and right, exercisable by delivering a written notice to Triangle request (a “Demand Notice,” and ”) by Holders owning at least 1 million of the Holder that delivers such a Demand Noticethen-outstanding Registrable Securities, subject to adjustment pursuant to Section 3.04, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and Company shall 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders andCommission, as soon as reasonably practicable thereafterpracticable, shallbut in no event more than 90 days following the receipt of the Notice, subject to a registration statement (each, a “Registration Statement”) under the limitations of this Section 2(a), file a Registration Statement covering all Securities Act providing for the resale of the Registrable Securities that (which may, at the option of the Holders shall in writing request (giving such request to Notice, be given to Triangle within three days of receipt of such notice a registration statement under the Securities Act that provides for the resale of the Demand Notice given by Triangle Registrable Securities pursuant to this Section 2(a)(ii)) Rule 415 from time to be included in such Demand Registration as promptly as practicable as directed time by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and Holders (a “Shelf Registration Statement”)). The Company shall use all its commercially reasonable efforts to cause such each Registration Statement to become be declared effective under by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities Act covered by such Registration Statement. The Company shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be continuously effective, supplemented and remain effective under amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities Act by the Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a . Each Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form with all applicable requirements of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Securities Act and is sufficient to permit offers and sales of statements therein not misleading. There shall be no limit on 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not Registration Statements that may be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personhereunder.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (Niska Gas Storage Partners LLC), Registration Rights Agreement (Niska Gas Storage Partners LLC)
Demand Registration. (ia) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering After receipt of a written notice to Triangle request from a Holder requesting that the Company effect a registration (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii") Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities which specifies the intended method or methods of disposition thereof, the Company shall promptly notify all Holders in writing of the receipt of such request and each such Holder, in lieu of exercising its rights under Section 4 hereof, may elect (by written notice sent to the Company within ten (10) 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 on in such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order registration thereof pursuant to enable such offering to take place.
(vii) Without limiting this Section 3, and such Holder shall specify in connection such notice the number of Registrable Securities that such Holder elects to include in such registration. Thereupon the Company shall, as expeditiously as is possible, but in any event no later than thirty (30) days (excluding any days which occur during a permitted Blackout Period under Section 5 below) after receipt of a written request for a Demand Registration, file with any the SEC and use its reasonable best efforts to cause to be declared effective as soon as practical after the filing thereof a registration statement (a "Demand Registration pursuant Statement") relating to and all shares of Registrable Securities which the Company has been so requested to register by such Holders ("Participating Demand Holders"), to the extent required to permit the disposition (in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file the intended method or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documentsmethods thereof, as may be necessary or advisable to register or qualify aforesaid) of the securities subject to such Demand Registration, including under the securities laws of such states as the Holders shall reasonably requestRegistrable Securities so registered; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle would become subject to general service the aggregate number 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 requested to be registered constitute at least 10% of the initial amount of the Registrable Securities or include all Registrable Securities which remain outstanding at such time; provided further that, the Company may, if permitted by applicable Laws and Regulations, utilize the Shelf Registration Statement to satisfy its obligations hereunder.
(b) If the majority of the Participating Demand Holders 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 14 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 Trading Market and distribution of such securities or otherwise having a material adverse effect on the marketability thereof (B) do any and all other acts and things the "Maximum Number of Securities"), then the Company shall include in such Demand Registration the Registrable Securities that may the Participating Demand Holders have requested to be reasonably necessary or appropriate or reasonably requested by registered thereunder only to the Holders to enable extent the Holders to consummate a public sale 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 accordance with such Demand Registration shall be allocated among all the intended timing Participating Demand Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder).
(c) Holders shall be entitled to an aggregate of two (2) registrations of Registrable Securities pursuant to Section 3(a) in respect of an underwritten secondary offering (each, a "Demand for Registration"); provided that a registration requested pursuant to Section 3(a) shall not be deemed to have been effected for purposes of Section 3(d) unless (i) it has been declared effective by the SEC, (ii) it has remained effective for the period set forth in Section 6(a) and method (iii) the offering of Registrable Securities pursuant to such registration is not subject to any stop order, injunction or methods other order or requirement of distribution thereofthe SEC (other than any such stop order, injunction or other requirement of the SEC prompted by act or omission of Holders of Registrable Securities).
(d) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare and file (i) more than two Demand Registration Statements in any 12 month period or (ii) any Demand Registration Statement within 90 days following the date of effectiveness of any other Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Txu Corp /Tx/), Registration Rights Agreement (Txu Us Holdings Co)
Demand Registration. (ia) Any Holder At any time after the date which is 180 days following the Registration Date, if JPM DJ shall state in writing that holds any it desires to sell Registrable Shares in the public securities markets and requests the Corporation to effect the registration under the Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand NoticeAct of Registrable Shares, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event Corporation shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP within 10 days of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall request give written notice of such Demand Notice proposed registration to all Holders and, as soon as reasonably practicable thereafter, shall, subject holders of Registrable Shares and shall offer to the limitations of this Section 2(a), file a Registration Statement covering all of the include in such proposed registration only Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) Shares requested to be included in such Demand Registration as proposed registration by such holders who respond in writing to the Corporation within thirty (30) days after delivery of such notice (which request shall specify the number of Registrable Shares proposed to be included in such registration). The Corporation shall, subject to SECTION 2(b) below, promptly as practicable as directed by thereafter use its best efforts to effect such registration under the Initiating Holder Securities Act of the Registrable Shares which the Corporation has been so requested to register for sale in accordance with the terms 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 conditions of shall select any additional investment bankers and managers to be used in connection with the Demand Notice and use all commercially reasonable efforts offering.
(b) Anything contained in SECTION 2(a) to cause such Registration Statement the contrary notwithstanding, the Corporation shall not be obligated to become effective effect pursuant to SECTION 2(a) any registration under the Securities Act and remain effective under except in accordance with the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).following provisions:
(iiii) Subject the Corporation shall not be obligated to the other limitations contained in this Agreement, Triangle is not obligated hereunder use its best efforts to effect file and cause to become effective (A) more than two Demand Registrations 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 any 12 month perioda 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) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a any Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective 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 remains not withdrawn or has been declared effective under within the Securities Act and is sufficient to permit offers and sales 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.prior 180 days;
(ivii) Notwithstanding the Corporation may delay the filing or effectiveness of any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment theretopursuant to SECTION 2(a) for a period of up to 60 days90 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, if 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 (Aii) the Board reasonably determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration and offering would render Triangle unable 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 comply with applicable securities laws or (Cthis SECTION 2(b) for a total of 180 days after the Board determines such date of a request for registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”pursuant to SECTION 2(a); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and and
(iii) during with respect to any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Periodregistration pursuant to SECTION 2(a), Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle the Corporation may include in such registration any such Demand Registration other Triangle Securities for sale for its own account Primary Shares or for the account of any other PersonOther Shares; provided PROVIDED, HOWEVER, that if the managing underwriter, if any, for underwriter advises the Underwritten Offering determines Corporation that the type or number inclusion of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the priceall Registrable Shares, timing or distribution of the Registrable Securities Primary Shares and Other Shares proposed to be included in such offeringregistration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Securities Shares, Primary Shares and Other Shares proposed to be sold by the Holders shall be included in such registration before any Triangle Securities proposed 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 sold for registered by each such holder);
(B) SECOND, the account Primary Shares; and
(C) THIRD, the Other Shares (or, if necessary, such Other Shares PRO RATA among the holders thereof based upon the number of Triangle or any other PersonOther Shares requested to be registered by each such holder).
(vic) Subject A requested registration under this SECTION 2 may be rescinded prior to such registration being declared effective by the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides Commission by written notice to Triangle the Corporation from JPM DJ; PROVIDED, HOWEVER, that it intends to effect an offering the requested registration which has been rescinded shall count as a demand registration for purposes of all SECTION 2(b)(i) unless the request for withdrawal shall have been the result of, or part made in response to, a material adverse change or event on the business, properties, condition (financial or otherwise), or operations of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeCorporation.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dj Orthopedics Capital Corp), Registration Rights Agreement (Dj Orthopedics Inc)
Demand Registration. (i) Any At any time after the expiration of the Lock-Up Period, any Sponsoring Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for unless the Registrable Securities having of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of less than $30 million based on the VWAP of such Registrable Securities at least $50 million (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) Within five Business Days of after the receipt of the Demand Notice, Triangle the Company shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafterwithin thirty days thereof (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within ninety days thereof), shall, subject to the limitations of this Section 2(a), file a Registration Statement covering 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 Triangle the Company within three ten days of after receipt of such notice of the Demand Notice given by Triangle the Company pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and ). The Company shall use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle the Company is not obligated hereunder to effect (A) more than two a Demand Registrations in Registration within 90 days after the closing of any 12 month periodUnderwritten Offering, (B) (i) through December 31, 2016, more than a total of three Demand Registrations for which RSP Permian Holdco, L.L.C. (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder and (ii) on or after January 1, 2017, more than one Demand Registration per calendar year for which RSP Permian Holdco, L.L.C. (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (C) more than a total of five two Demand Registrations pursuant to this Agreement for which ▇▇▇ ▇▇▇▇▇▇▇, Jr. (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (D) more than a total of two Demand Registrations for which ▇▇▇▇▇▇▇ Family Partnership, LP (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, (E) more than a total of two Demand Registrations for which ACTOIL, LLC (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and (CF) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice Initiating Holder shall have become effective under the 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 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. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), there is included in the Demand Registration less than the lesser of (i) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $30 million and (ii) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (A Holder may withdraw all or any amendment theretoportion 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 Shares such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) for a period of up to 60 days, if unless (A) the Board determines that a postponement is 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 best interest withdrawn registration of Triangle and its stockholders generally due such Registrable Securities (based on the number of securities the Initiating Holder sought to a pending transaction involving Triangleregister, as compared to the total number of securities included in such Demand Registration) or (B) the Board determines such registration would render Triangle unable withdrawal is made following the occurrence of a Material Adverse Change or pursuant to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose Company’s request for preserving as confidential (any such period, a “Blackout Period”suspension pursuant to Section 3(o); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle The Company may include in any such Demand Registration other Triangle Company Securities for sale for its own account or for the account of any other Person; provided that , subject to Section 2(a)(vi) and Section 3(c)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the managing underwriter, if any, for Initiating Holder advises the Underwritten Offering determines Company that in its reasonable opinion the type or aggregate number of Triangle Securities proposed securities requested to be offered in such offering would included exceeds the number that can be included without being likely to have an a significant adverse effect in any material respect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities proposed then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such offeringDemand Registration, the Registrable Securities Company, and (C) third, if there remains availability for additional securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or Demand Registration, any other Personholders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vivii) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible to register for resale A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities on Form S-3, in which case such accordance with the intended method or methods of disposition specified in the Demand Registration shall be effected on another appropriate form for such purpose pursuant to Notice; provided that if the Securities Act) and if Triangle Company 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 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 Trianglethe Company); provided, however, that if . If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, 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 states jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
(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 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 shall the Company be required to 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 the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (RSP Permian, Inc.), Registration Rights Agreement (RSP Permian, Inc.)
Demand Registration. (i1) Any Holder that holds At any Registrable Securities time after the date hereof, and subject to the other provisions of this Section 12, the Executive shall have the option and right, exercisable by delivering making a written notice request to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”)Company, to require Triangle 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 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 demand that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to Company effect the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 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 method 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 methods her right, if any, to demand that the Company effect the Registration of distribution thereofany Registrable Securities, then the Executive shall have the right to Register an equivalent number of Registrable Securities without reducing the number demand Registrations the Executive shall have in any calendar year.
(2) Following receipt of a request pursuant to Section 12(a)(1) hereof, the Company shall (i) file within ninety (90) days thereafter a registration statement on the appropriate form 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 the Executive 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 eighty (180) days. Notwithstanding any other provision hereof, the Executive acknowledges and agrees that there can be no guarantee or warranty from or by the Company that any such registration statement will ever be declared effective by the Commission, and that the Company makes no such guarantee or warranty in this Agreement.
Appears in 2 contracts
Sources: Executive Employment Agreement (European Micro Holdings Inc), Executive Employment Agreement (European Micro Holdings Inc)
Demand Registration. (i) Any Subject to the terms and conditions of this Agreement, including Section 2(a)(ii) below, at any time and from time to time after the expiration of the lock-up period applicable to the IPO, each Holder that holds (any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Noticerequesting Holder, the “Initiating Holder”), ) shall have the right to require Triangle to, pursuant the Company to file one or more registration statements under the Securities Act covering all or any part of their Registrable Securities upon written notice 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 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 Company (a “Demand RegistrationNotice”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends registration so requested is referred to include in such herein as a “Demand Registration. Notwithstanding anything to .” The Company shall promptly (but in any event, not later than ten Business Days following the contrary herein, in no event shall Triangle be required to effectuate Company’s receipt of a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Notice) give written notice (“Demand Eligible Holder Notice.
(ii”) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and(other than the Initiating Holder) that, as soon as reasonably practicable thereafterto its knowledge, shallhold Registrable Securities (each a “Demand Eligible Holder”). The Company shall promptly (but in any event, subject to not later than 60 days following the limitations Company’s receipt of this Section 2(a), a Demand Notice) file a the appropriate Registration Statement covering all (the “Demand Registration Statement”) and use its commercially reasonable efforts to effect, at the earliest practicable date, the registration under the Securities Act and under applicable state securities laws of (A) the Registrable Securities that which the Holders shall in writing request (such request Company has been so requested to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed register by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month periodNotice, (B) more than a total all other Registrable Securities of five the same class or series as those requested to be registered in the Demand Registrations pursuant Notice which the Company has been requested to this Agreement register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Company within ten Business Days after the giving of the Demand Eligible Holder Notice, and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the any Registrable Securities held to be offered and sold by the Holders providing such Demand Notice shall have become effective under Company, in each case subject to Section 2(a)(ii), all to the Securities Act and remains effective under the Securities Act and is sufficient extent required to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice disposition (in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(ivdisposition) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle so registered. The Company shall effect any requested Demand Registration using a registration statement on Form S-3 (except if Triangle whenever the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt of a Demand Notice, Seasoned Issuer or a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to use an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (Statement if available to Triangle); provided, however, that if at any time it is a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeWKSI.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (FTS International, Inc.), Registration Rights Agreement (FTS International, Inc.)
Demand Registration. (ia) Any Holder that holds any Registrable Securities shall have Following the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as first anniversary of the date of the Demand Notice.
(ii) Within five Business Days of hereof and upon the receipt of the Demand Notice, Triangle shall give a written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), request from any Northern Right Capital Party that GEC file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under covering the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, offer and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement(a “Demand Registration”), Triangle will amend or supplement such Registration Statement as may soon as practicable, GEC shall file with the SEC and use its reasonable best efforts to cause to be necessary in order declared effective, a registration statement relating to enable such offering all Registrable Securities that Northern Right Capital Party has requested be registered to take place.
(vii) Without limiting Section 3be registered under the Securities Act, in connection with any Demand Registration pursuant subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement. The Northern Right Capital Parties are collectively entitled to effect two (2) such Demand Registrations pursuant to this Section 2(a1.2(a); provided, Triangle shallthat, a registration requested pursuant to this Section 1.2(a) shall not be deemed to have been effected unless a Registration Statement with respect thereto has become effective (other than due to the fault of a Northern Right Capital Party) and at least 75% of the Registrable Securities requested to be included in such Demand Registration (and not withdrawn) shall have been disposed of in accordance with the plan of distribution set forth therein. The Northern Right Capital Party may terminate a Demand Registration prior to the filing of a Registration Statement relating thereto, or require GEC to withdraw promptly any Registration Statement which has been filed pursuant to this Section 1 but which has not become effective under the Securities Act, and such registration shall not be deemed to be a Demand Registration if either (i) it agrees to pay the costs and expenses of such registration as set forth in Section 1.6 hereof, or (ii) such withdrawal is accompanied by notice from the Northern Right Capital Party that, in the good faith exercise of its reasonable judgment, (A) promptly prepare and file such withdrawal is warranted based on a change in the business or cause to be prepared and filed (1) such additional formsprospects of GEC or a change in the condition of the United States financial markets, 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, Triangle 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 there has occurred a misstatement or omission in any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders prospectus which makes it inadvisable to enable the Holders to consummate a public sale of such Registrable Securities in accordance proceed with the intended timing and method or methods of distribution thereofregistration.
Appears in 2 contracts
Sources: Share Registration Agreement (Northern Right Capital Management, L.P.), Share Registration Agreement (Great Elm Capital Group, Inc.)
Demand Registration. (iSubject to Sections 2.2(d) Any and 2.3 hereof, at any time after the date that is 365 days after the IPO Closing Date, each Holder that holds any Registrable Securities shall have may deliver to the option and right, exercisable by delivering Company a written notice to Triangle (a “Demand Registration Notice,” ”) informing the Company of such Holder’s desire to have some or all of its Registrable Securities registered for resale and specifying the Holder that delivers such number of Registrable Securities to be registered by the Company (“Demand Registration”). Upon receipt of a Demand NoticeRegistration Notice from a Holder requesting registration of the lesser of (i) two hundred thousand (200,000) Registrable Securities or (ii) all of such Holder’s Registrable Securities, if the Company has not already caused such Registrable Securities to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the “Initiating Holder”Commission and which remains in effect and not subject to any stop order, injunction or other order or requirement of the Commission (in which event the Company shall be deemed to have satisfied its registration obligation under this Section 2.2 with respect to such Registrable Securities), then the Company shall cause to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file be filed with the Commission as soon as reasonably practicable after receiving the Demand Registration Notice, but in no event more than sixty (60) days following receipt of such notice, a Registration Statement registering new registration statement and related prospectus covering the offering and sale resale 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 (any such registration statement used to Rule 415 (a satisfy the Company’s obligations under this Section 2.2, the “Demand RegistrationRegistration Statement”). The Demand Notice must set forth , which complies as to form in all material respects with applicable Commission rules providing for the number sale by such Holder or group of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP Holders of such Registrable Securities Securities. The Company agrees (subject to Section 2.3 hereof) to use commercially reasonable efforts to cause the Demand Registration Statement to be declared effective by the Commission as soon as practicable. Subject to Section 2.3 hereof, the Company agrees to use commercially reasonable efforts to keep any Demand Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date that is two (2) years after the date of the effectiveness of such Demand Notice.
Registration Statement, (ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering date on which all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given covered by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts Statement are eligible for sale without registration pursuant to cause such Registration Statement to become effective Rule 144 (or any successor provision) under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
without volume limitations or other restrictions on transfer thereunder, or (iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total date on which the Holder or Holders consummate the sale of five 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 held by the Holders providing such Demand Notice shall have become effective registered under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Statement. Notwithstanding the foregoing, the Company may at any time (including, without limitation, prior to or after receiving a Demand Registration Notice from a Holder), in its sole discretion, include all additional Registrable Securities for sale for its own account then outstanding or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect portion thereof in any material respect on the priceregistration statement, timing or distribution including by virtue of the adding such Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 shall be effected pursuant as additional securities to an Automatic Shelf Issuer Registration Statement, which shall be on Form S-3 a Demand Registration Statement or any equivalent or successor form an existing shelf registration statement pursuant to Rule 462(b) under the Securities Act (if available in which event the Company shall be deemed to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice have satisfied its registration obligation under this Section 2.2(a) with respect to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on so included, so long as such Registration Statementregistration statement remains effective and not the subject of any stop order, Triangle will amend injunction or supplement such Registration Statement as may be necessary in other order to enable such offering to take placeof the Commission).
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (RLJ Lodging Trust), Registration Rights Agreement (RLJ Lodging Trust)
Demand Registration. (i) Any Holder that holds any Registrable Securities Quantum shall have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 the “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the Following receipt of the a Demand Notice, Triangle the Company shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement as promptly as practicable covering all of the Registrable Securities that the Holders shall in writing request (Quantum requests on such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice this Agreement and shall use all commercially its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act until for not less than twenty four (24) months following the Effective Date or such shorter period when all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
; provided, however, (iiii) that the Company shall not be required to effect the registration of Registrable Securities pursuant to this Section 2(a) unless the Registrable Securities are offered at an aggregate proposed offering price of not less than $50 million and (ii) the Effectiveness Period shall be extended by one (1) day for each additional day during any Suspension Period in effect following the Effective Date applicable thereto pursuant to Section 2(a)(iv). Subject to the other limitations contained in this Agreement, Triangle the Company is not obligated hereunder to effect (A) more than two three (3) Demand Registrations in any 12 twelve (12) month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iviii) Notwithstanding any other provision of this Section 2(a), Triangle the Company shall not be required to: (A) file a Registration Statement pursuant to this Section 2(a) during the period starting with the date thirty (30) days prior to a good faith estimate by the majority of the members of the board of directors of the Company (excluding any members of the board of directors that are employees or Affiliates of Quantum)(the “Unaffiliated Board Members”), of the date of filing of, and ending on a date ninety (90) days after the effective date of, a Company initiated registration; provided that the Company is actively employing its reasonable best efforts to cause such registration statement to become effective; (B) effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 one hundred twenty (120) 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 Company is engaged, or has plans to engage, within thirty (30) days of the time of such Demand Notice, in a firm commitment underwritten public offering of Common Shares), or (2) the Company 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; (C) effect a registration or file a Registration Statement for a period of up to ninety (90) days, if (A1) the Unaffiliated Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines Members determine such registration would render Triangle the Company unable to comply with applicable securities laws or (C2) the Unaffiliated Board determines Members determine such registration would require premature disclosure of material information that Triangle the Company has a bona fide business purpose for preserving as confidential confidential; or (D) if the Company has filed a “shelf” registration statement pursuant to a Demand Notice under this Section 2(a) and has included Registrable Securities therein (each such Registration Statement, a “Shelf Registration Statement”), the Company shall be entitled to suspend, for a reasonable period of time not in excess of 45 consecutive days and not more than 90 days in any 12 month period (except as a result of a review of any post-effective amendment by the Commission before declaring any post-effective amendment to the Registration Statement effective; provided, that the Company has used its reasonable best efforts to cause such post-effective amendment to be declared effective), the offer or sale of Registrable Securities pursuant to such registration statement by any holder of Registrable Securities if (1) a “road show” is not then in progress with respect to a proposed offering of Registrable Securities by such holder and (2) either (A) the Unaffiliated Board Members, in good faith, determine that (i) the offer or sale of any shares of Common Stock would materially impede, delay or interfere with a significant transaction under negotiation by the Company, including any proposed financing, offer or sale of securities, acquisition, merger, tender offer, business combination, corporate reorganization, or consolidation , (ii) after the advice of counsel, the sale of Common Shares covered by the shelf Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (iii) either (x) the Company has a bona fide business purpose for preserving the confidentiality of the proposed transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, or (z) the proposed transaction renders the Company unable to comply with requirements of the Commission; or (B) the Unaffiliated Board Members, in good faith, determines that the Company is required by law, rule or regulation to supplement the Shelf Registration Statement or file a post-effective amendment to the Shelf Registration Statement in order to incorporate information into the Shelf Registration Statement for the purpose of (i) including in the Shelf Registration Statement any Prospectus required under Section 10(a)(3) of the Securities Act or (ii) reflecting in the Prospectus included in the Shelf Registration Statement any facts or events arising after the effective date of the Shelf Registration Statement (or the most recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth in the Prospectus (any such periodperiod referred to in this Section 2(a)(iii), a “Blackout Suspension Period”); provided, however, that (i) in no event shall the Company postpone, defer or suspend any Blackout Period together with any Suspension Period collectively exceed Demand Registration pursuant to this Section 2(a)(iii) and/or Section 7(g) for more than an aggregate of 120 one hundred twenty (120) days in any 12 twelve (12) month period, (ii) during in the event the Company postpones, defers or suspends any Blackout Period contemplated by Demand Registration pursuant to Section 2(a)(iv)(B2(a)(iii)(C)(1) or any (2) or Section 2(a)(iii)(D), then during such Suspension Period, Triangle the Company shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities Common Shares (whether for the benefit of Triangle the Company or a third Person), except transactions involving the issuance or purchase of Triangle Securities Common Shares as contemplated by Triangle Company employee benefit plans or employee or director arrangements or in connection with arrangements. In order to suspend the conversion or exercise use of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder pursuant to this Section 2(a)(iii)(D), the Company shall promptly upon determining to seek such suspension, deliver to the holders of Registrable Securities included in such registration rightsstatement, a certificate signed by the Chief Executive Officer of the Company stating that the Company is suspending use of such registration statement pursuant to Section 2(a)(iii)(D), the basis therefor in reasonable detail and a good faith estimate as to the anticipated duration of such suspension.
(viv) Triangle The Company may include in any such Demand Registration other Triangle Securities Common Shares for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, underwriter for the Underwritten Offering offering determines that the type or number of Triangle Securities Common Shares proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Company Securities proposed to be included in such offeringoffering or the market for the Common Shares, then the Registrable Securities to be sold by the Holders Quantum shall be included in such registration before any Triangle Securities Common Shares proposed to be sold for the account of Triangle the Company or any other Person.
(viv) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 F-3 (except if Triangle the Company is not then eligible to register for resale the Registrable Securities on Form S-3F-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle the Company 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 F-3 or any equivalent or successor form under the Securities Act (if available to Trianglethe Company); provided, however, that if at any time a Registration Statement on Form S-3 F-3 is effective and a Holder Quantum provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viivi) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders Quantum shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 Quantum to enable the Holders Quantum to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pacific Drilling S.A.), Registration Rights Agreement (Pacific Drilling S.A.)
Demand Registration. (i) Any Holder that holds any Registrable Securities shall have Upon the option and right, exercisable by delivering a written notice to Triangle request (a “Demand Notice,” and ”) by a Principal Holder, Legacy Holder or any other Holder owning or controlling at least five percent (5%) of the Holder that delivers such a Demand then outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04), the Company shall file with the Commission, as soon as reasonably practicable, but in no event more than 30 days following the receipt of the Notice, a registration statement (each, a “Registration Statement”) under the Securities Act providing for the resale of the Registrable Securities (which may, at the option of the Holders giving such Notice, be a registration statement under the Securities Act that provides for the resale of the Registrable Securities pursuant to Rule 415 from time to time by the Holders (a “Initiating HolderShelf Registration Statement”), ); provided that in no event shall the Company be required to require Triangle file a Registration Statement prior to the date that is 90 days after the consummation of the Transactions. The Company shall use its commercially reasonable efforts to cause each Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, pursuant and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement. To the extent the initial Registration Statement is not made on Form S-3, the Company shall, upon becoming eligible to the terms of and subject to the limitations contained in this Agreementfile a registration statement on Form S-3, prepare and file with a new Registration Statement on Form S-3 to replace the initial Registration Statement and use its best efforts to cause such subsequent Registration Statement to be declared effective by 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders . The Company shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all its commercially reasonable efforts to cause such each Registration Statement filed pursuant to become effective under this Section 2.01 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities Act and remain effective under by the Securities Act Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a . Each Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Each Holder shall be limited to two demand registrations under the Securities Act and is sufficient to permit offers and sales 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement 2.01 in any twelve-month period (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in there shall be no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving limit on the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to Shelf Registration Statements that may be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold required by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomeshereunder), 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 Company shall not be effected pursuant obligated 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 Triangle); provided, however, that if at any time a file more than one Registration Statement on Form S-3 is within 120 days after the effective and a Holder provides written notice to Triangle that it intends to effect an offering date of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such any 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereofCompany.
Appears in 2 contracts
Sources: Registration Rights Agreement (Talos Energy Inc.), Registration Rights Agreement (SAILFISH ENERGY HOLDINGS Corp)
Demand Registration. (ia) Any Holder At any time from and after the date that holds any Registrable Securities shall have is [*] from the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms date 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 Majority Holders may request 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 writing that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to Company effect the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective registration under the Securities 1933 Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in of any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities. Except as otherwise provided herein, the Company shall prepare and (within 90 days after such request has been given) file with the Securities and Exchange Commission (the “SEC”) a registration statement with respect to (x) all Registrable Securities included in such request and (y) all Registrable Securities included in any request delivered by the Requesting Holders providing such Demand Notice shall have become effective pursuant to Section 2.1(f) (together, the “Covered Registrable Securities”), and thereafter use its reasonable efforts to effect the registration under the Securities 1933 Act and remains effective under the Securities Act and is sufficient to permit offers and sales applicable state securities laws of the number and type of such Registrable Securities on the terms and conditions specified in the Demand Notice for disposition in accordance with the intended timing and method or methods of distribution thereof specified disposition stated in such request (which requested method of disposition may be a Rule 415 Offering, provided that the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle Company shall not be required to effect maintain the effectiveness of a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due statement relating to a pending transaction involving Triangle, (B) Rule 415 Offering to the Board determines extent the securities included in such registration would render Triangle unable cease to comply with applicable securities laws or (C) be Registrable Securities); provided further that the Board determines Company shall not be obligated to effect any such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that pursuant to this Section 2.1(a) (i) in no event shall during the period starting with the date of filing of, and ending on the date 90 days following the effective date of, a registration statement pertaining to a public offering initiated or requested by the Company or any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month periodstockholder other than a Holder, (ii) during 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 filed and become effective, and, if requested by the 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 Blackout Period contemplated effective registration statement by Section 2(a)(iv)(B) furnishing the Holders with a certified copy of such resolution of the Board of Directors as to a Materially Prejudicial Condition. Upon receipt of such certified copy, the Holders shall immediately discontinue use of the prospectus contained in such registration statement and, if so directed by the Company, 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 Suspension PeriodMaterially Prejudicial Condition with respect to which the Company previously furnished notice. Neither the filing nor the effectiveness of any such registration statement may be delayed, Triangle shall not engage or the use of the prospectus contained in any transaction involving such registration statement suspended, for a period in excess of 90 days due to the offer, issuance, sale, occurrence of any particular Materially Prejudicial Condition and the Company may exercise its delay or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or suspension rights on only one occasion in connection with any registration request under Section 2.1 in any twelve-month period. If requested by the conversion 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) The Majority Holders may collectively exercise their rights to require a registration under Section 2.1(a) once, provided that the Majority Holders may collectively exercise their rights to require a registration under Section 2.1(a) on an [*] for each time that less than all of outstanding securitiesthe Covered Registrable Securities are included in the registration statement filed by the Company with the SEC pursuant to a request under Section 2.1(a) because of the operation of Section 2.1(g).
(c) Without limiting the last sentence of Section 2.1(a), including the Convertible NoteHolders shall not have the right to require the filing of a registration statement pursuant to this Section 2.1 while any registration 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 pursuant to this Section 2.1 shall not be deemed to have been effected (and, and therefore, rights of a Requesting Holder shall be deemed not to have been exercised for purposes of paragraph (a) above) (i) unless it has become effective, (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) during if the conditions to closing specified in any Blackout Period contemplated purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or waived other than because of some act or omission by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rightsHolder.
(ve) Triangle may 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 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 intended method or methods of disposition stated in such request. Each other Holder may, by written notice to the Company to be delivered within [*] of the delivery of the Company’s notice, request the inclusion in 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 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 Demand Registration other Triangle Securities 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 its own account or for the account of any other Personperson 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 the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed such registration is to be offered 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 offering 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 that would otherwise be included in such registration would be likely to have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed offering and sale of the equity securities to be included in such offeringregistration, then the Registrable 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 sold by inconsistent with the Holders 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 in such registration before any Triangle Securities proposed 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 be sold for the account of Triangle or any other Person.nearest extent possible on a pro rata basis;
(viii) Subject second, up to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time full number 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 held by Holders and (B) do any Third Party Parity Securities that are requested to be included in such registration, in excess of the 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 and all Third Party Parity Securities that will be so included in such registration being determined on the basis of the number of Registrable Securities that the Holders request be included in such registration and the number of Third Party Parity Securities that are requested to be included in such registration);
(iii) third, up to the full number of Company Securities that the Company proposes to include in such registration, in excess of the number 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 full number of any Other Securities (that are not Third Party Priority Securities, Registrable Securities, Third Party Parity Securities or Company Securities) held by other acts holders of the Company’s securities entitled to registration rights that are requested to be included in such registration, in excess of the number of Third Party Priority Securities, Registrable Securities, Third Party Parity Securities and things Company 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. In the event that may the number of Registrable Securities requested to be reasonably necessary or appropriate or reasonably requested included in a registration statement that will not include any Additional Equity Securities by the Requesting Holders to enable exceeds the Holders to consummate a public number which, in the good faith view of such investment banking firm, can be sold without adversely affecting the price, timing, distribution or sale of such securities in the offering, the number shall be allocated pro rata among all of the Requesting Holders on the basis of the relative number of Registrable Securities then held by each such Requesting Holder (with any number in accordance with excess of a Requesting Holder’s request reallocated among the intended timing and method or methods of distribution thereofremaining Requesting Holders in a like manner).
Appears in 2 contracts
Sources: Registration Rights Agreement (Diversa Corp), Asset Sale Agreement (Diversa Corp)
Demand Registration. (iSubject to Sections 2.1(f) Any and 2.2 hereof, at any time after the date that is 180 days after the IPO Closing Date, each Holder that holds any Registrable Securities shall have may deliver to the option and right, exercisable by delivering Company a written notice to Triangle (a “Demand Registration Notice,” ”) informing the Company of such Holder’s desire to have some or all of its Registrable Securities registered for resale and specifying the Holder that delivers such number of Registrable Securities to be registered by the Company (“Demand Registration”). Upon receipt of a Demand NoticeRegistration Notice from a Holder requesting registration of the lesser of (i) two hundred thousand (200,000) Registrable Securities or (ii) all of such Holder’s Registrable Securities, if the Company has not already caused such Registrable Securities to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the “Initiating Holder”Commission and which remains in effect and not subject to any stop order, injunction or other order or requirement of the Commission (in which event the Company shall be deemed to have satisfied its registration obligation under this Section 2.1 with respect to such Registrable Securities), then the Company shall cause to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file be filed with the Commission as soon as reasonably practicable after receiving the Demand Registration Notice, but in no event more than sixty (60) days following receipt of such notice, a Registration Statement registering new registration statement and related prospectus covering the offering and sale resale 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 the “Demand RegistrationRegistration Statement”). The Demand Notice must set forth , which complies as to form in all material respects with applicable Commission rules providing for the number sale by such Holder or group of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP Holders of such Registrable Securities Securities. The Company agrees (subject to Section 2.2 hereof) to use commercially reasonable efforts to cause the Demand Registration Statement to be declared effective by the Commission as soon as practicable. Subject to Section 2.2 hereof, the Company agrees to use commercially reasonable efforts to keep any Demand Registration Statement continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) until the earlier of (i) the date that is two (2) years after the date of the effectiveness of such Demand Notice.
Registration Statement, (ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering date on which all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given covered by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts Statement are eligible for sale without registration pursuant to cause such Registration Statement to become effective Rule 144 (or any successor provision) under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
without volume limitations or other restrictions on transfer thereunder, or (iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total date on which the Holder or Holders consummate the sale of five 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 held by the Holders providing such Demand Notice shall have become effective registered under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Statement. Notwithstanding the foregoing, the Company may at any time (including, without limitation, prior to or after receiving a Demand Registration Notice from a Holder), in its sole discretion, include all additional Registrable Securities for sale for its own account then outstanding or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect portion thereof in any material respect on the priceregistration statement, timing or distribution including by virtue of the adding such Registrable Securities proposed as additional securities to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any a Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose Statement or an existing shelf registration statement pursuant to the Securities ActRule 462(b) and if Triangle 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 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 in which event the Company shall be deemed to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice have satisfied its registration obligation under this Section 2.1(a) with respect to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on so included, so long as such Registration Statementregistration statement remains effective and not the subject of any stop order, Triangle will amend injunction or supplement such Registration Statement as may be necessary in other order to enable such offering to take placeof the Commission).
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (RLJ Lodging Trust), Registration Rights Agreement (RLJ Lodging Trust)
Demand Registration. (i) Any Holder that holds any Registrable Securities shall have Upon the option and right, exercisable by delivering a written notice to Triangle request (a “Demand Notice,” and ”) by Holders collectively owning at least 10% the Holder that delivers such a Demand Noticethen-outstanding Registrable Securities, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and Partnership shall 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders andCommission, as soon as reasonably practicable thereafterpracticable, shall, subject to but in no event more than 90 days following the limitations of this Section 2(a), file a Registration Statement covering all receipt of the Notice, a registration statement (each a “Registration Statement”) under the Securities Act providing for the resale of such Registrable Securities, as the case may be, (which may, at the option of the Holders giving such Notice, be a registration statement under the Securities Act that provides for the resale of such Registrable Securities pursuant to Rule 415 from time to time by the Holders). There shall be no limit on the number of Registration Statements that may be required by the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and 2.01. The Partnership shall use all its commercially reasonable efforts to cause such each Registration Statement to become be declared effective under by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all such Registrable Securities Act covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be continuously effective, supplemented and remain effective under amended to the extent necessary to ensure that it is available for the resale of all such Registrable Securities Act by the Holders until all such Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a . Each Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Exchange Act and is sufficient shall not contain an untrue statement of a material fact or omit to permit offers and sales of state a material fact required to be stated therein or necessary to make the number and type of Registrable Securities on the terms and conditions specified statements therein not misleading (in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account case of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations prospectus contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placelight of the circumstances under which a statement is made).
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (Arc Logistics Partners LP), Registration Rights Agreement (Arc Logistics Partners LP)
Demand Registration. (i) Any Holder that holds At any Registrable Securities 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 Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 pursuant to a Shelf Registration Statement (a “Demand Registration”); provided that the Company shall not be obligated to file a Registration Statement with respect to a Requested Underwritten Offering pursuant to this Section 2(a) unless (x) the anticipated aggregate 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 sold by such Demand Holder in such offering represent all of the 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 include in such Demand RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything BHGE shall be entitled to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the three Demand NoticeRegistrations, and CSL and GS each shall be entitled to no less than two Demand Registrations.
(ii) Within five Business Days of (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, Triangle the Company shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafterwithin 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 covering 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 Triangle the Company within three days of Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of such notice of the Demand Notice given by Triangle the Company pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and ). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become effective under the Securities Act 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 limitations contained in this Agreement, Triangle the Company is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period(1) with respect to BHGE, (B) more than a total of five three Demand Registrations pursuant to this Agreement within any 365 day period and (C2) 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 Holders providing such Demand Notice Initiating Holder shall have become effective under the 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 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) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (A Holder may withdraw all or any amendment thereto) for portion of its Registrable Securities included in a period Demand Registration from such Demand Registration at any time prior to the effectiveness of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rightsRegistration Statement.
(v) Triangle The Company may include in any such Demand Registration other Triangle Company Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed subject to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other PersonSection 2(a)(vi) and Section 2(d)(iii).
(vi) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible to register for resale A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities on Form S-3, in which case such accordance with the intended method or methods of disposition specified in the Demand Registration shall be effected on another appropriate form for such purpose pursuant to Notice; provided that if the Securities Act) and if Triangle Company 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 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 Trianglethe Company); provided, however, that if . If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, 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 states jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
(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 shall the Company be required to 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 the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (BJ Services, Inc.)
Demand Registration. (i) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(via) Subject to the limitations contained in this Section 3, at any time following the second (2nd) anniversary of the Closing Date (as defined in the Merger Agreement), Triangle shall effect the Investor may, at any time and from time to time, request that the Company register for sale all or any of its Registrable Securities under the Securities Act in connection with an Underwritten Offering by sending the Company a written request setting forth such request and specifying the number of Registrable Securities required to be registered and the intended method of disposition (any such registration being referred to herein as a “Demand Registration”); provided that the minimum number of Registrable Securities to be registered on behalf of the Investor in any Demand Registration must be equal to at least thirty-three and one-third percent (33.33%) of the Registrable Securities held by Investor (on an as-converted basis) on the date hereof. For the avoidance of doubt, the Investor’s right to Demand Registration includes, without limitation, the right to require registration of an underwritten public offering of Registrable Securities (an “Underwritten Offering”) or the right to require the filing of a preliminary and final prospectus supplement to the extent that a Shelf Registration Statement is then effective. However, the registration of shares of Common Stock pursuant to any continuous offering of Registrable Securities pursuant to Rule 415 promulgated under the Securities Act (a “Shelf Offering”) shall be governed by Section 2 hereof.
(b) Subject to the limitations contained in this Section 3, upon the receipt by the Company of a written request for a Demand Registration pursuant to Section 3(a), the Company shall cause a Registration Statement on Form S-3 or any successor form thereto (except or, if Triangle the Company is not then eligible to register for the resale the Registrable Securities of shares on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to in accordance with the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause to be prepared and filed within sixty (160) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify days after the securities subject to such Demand Registration, including under date on which the securities laws of such states as the Holders shall reasonably request; initial request is given (provided, however, that no such qualification filing of a Demand Registration shall be required in any jurisdiction where, made earlier than the 24 month anniversary of the date of the closing of the Merger Agreement) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as a result thereof, Triangle would become subject to general service soon as practicable thereafter covering all 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 requested to be registered in the Demand Registration. The Company shall not be required to effect more than three (3) Demand Registrations pursuant to this Section 3. Any registration initiated as a Demand Registration pursuant to Section 3(a) shall not count as a Demand Registration unless and until the Registration Statement with respect to such registration shall have become effective.
(c) The Company shall not be obligated to effect any Demand Registration within one-hundred eighty (180) days after the effective date of a previous Demand Registration or a previous registration in which the Investor was given Piggyback Registration rights. The Company may postpone the filing or effectiveness of a Registration Statement for a Demand Registration (i) for up to ninety (90) days if the Company, in good faith, determines that such Demand Registration on would reasonably be expected to result in an Adverse Disclosure or (ii) for up to ninety (90) days, if the Trading Market Company, in good faith, intends to conduct a primary offering of Common Stock within ninety (90) days of the proposed Demand Registration; provided that in such event the Investor shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration.
(Bd) do The Investor may withdraw its Registrable Securities from a Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of notice from the Investor to such effect, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement and such registration shall nonetheless be deemed a Demand Registration hereunder unless the withdrawal is made after a material adverse change to the Company or after notice of a postponement pursuant to Section 3(c).
(e) In the case of any Demand Registration that relates to an Underwritten Offering, the Investor shall select the investment banking firms to act as the managing underwriter or underwriters in connection with such Underwritten Offering, provided that such investment banking firms shall be reasonably acceptable to the Company.
(f) If a Demand Registration is initiated by the Investor as an Underwritten Offering, and the managing underwriter advises the Investor and the Company in writing that, in its opinion, the number of shares of Common Stock proposed to be included in such registration, including all Registrable Securities and all other acts and things shares of Common Stock proposed to be included in such Underwritten Offering, exceeds the number of shares of Common Stock which can be sold in such offering or that may the number of shares of Common Stock proposed to be reasonably necessary or appropriate or reasonably included in any such registration would adversely affect the marketability of such offering, the Company shall include in such registration (i) first, the number of shares of Common Stock requested to be included therein by the Holders Investor and the BKC Investors; and (ii) second, the number of shares of Common Stock requested to enable be included therein by the Holders to consummate a public sale holders of Common Stock (other than the Investor and the BKC Investors), allocated among such Registrable Securities holders in accordance with the intended timing and method or methods of distribution thereofsuch manner as they may agree.
Appears in 2 contracts
Sources: Registration Rights and Stockholders’ Agreement (Carrols Restaurant Group, Inc.), Registration Rights and Stockholders’ Agreement (Carrols Restaurant Group, Inc.)
Demand Registration. (ia) Any Holder At any time after the date that holds any Registrable Securities shall have is ten months from the option and rightdate hereof, exercisable by delivering a upon written notice to Triangle (the Issuer from a “Demand Notice,” and the Holder that delivers such or Holders holding a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained majority 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all interest of the Registrable Securities (a "Demand Request") requesting that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of Issuer effect the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective registration under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in of any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering or all of the Registrable Securities held by such requesting Holders, which notice shall specify the Holders providing intended method or methods of disposition of such Demand Notice Registrable Securities, the Issuer shall have become prepare as soon as practicable and, within 15 days after such request, file with the Commission a registration statement with respect to such Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to be declared effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales for purposes of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice dispositions in accordance with the intended timing and method or methods of distribution thereof specified disposition stated in such request within 30 days after the filing of such registration statement; provided, however, that the Issuer shall have no obligation to (i) cause such registration statement filed pursuant to this Section 2.2 to be declared effective on a date that is prior to the first anniversary of this Agreement or (ii) cause such registration statement filed pursuant to this Section 2.2 to be declared effective during any period during which a Shelf Registration Statement filed pursuant to Section 2.1 remains effective. Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their Demand NoticeRequest rights for registration of their Registrable Securities under this Section 2.2(a) on not more than three occasions (any such registration being referred to herein as a "Demand Registration");
(ii) the method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering;
(iii) the Issuer shall not be required to effect a Demand Registration hereunder if all securities owned by the Holders have ceased to be Registrable Securities; and
(iv) the Issuer shall not be required to effect more than one Demand Registration during any 12 month period.
(ivb) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to this Section 2(a), Triangle 2.2 shall not be required deemed to effect a registration or file a Registration Statement have been effected, and, therefore, not requested and the rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (or any amendment theretoa) for a period of up to 60 daysabove, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, if such Demand Registration has not become effective under the Securities Act or (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any if such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriterRegistration, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to after it became effective under the Securities Act) and if Triangle 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 shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form was not maintained effective under the Securities Act (including, without limitation, if available to Triangle); providedit was interfered with by any stop order, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all injunctions or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.other
Appears in 2 contracts
Sources: Registration Rights Agreement (Lamar Advertising Co/New), Registration Rights Agreement (Amfm Inc)
Demand Registration. 4.1 If, at any time after the Required Filing Date and prior to the expiration of the Effectiveness Period, (i) Any Holder that holds any (A) additional Registrable Securities shall Securities, which have not been included in the option and rightShelf Registration Statement of the Company pursuant to Section 3.1 above, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle are issued or issuable to, pursuant to the terms of and subject to the limitations contained in this Agreementor otherwise acquired by, 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 in accordance with the intended timing and method Designated Holder 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(iiB) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering the sale of all of the Registrable Securities that is not then effective and available for sales thereof by a Designated Holder for any reason (other than the Holders shall in writing request (such request to be given to Triangle within three days of receipt fault of such notice Designated Holder or as a result of a suspension or discontinuance or restriction permitted under Section 7.4, Section 7.5 or Section 7.6), and (ii) the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 Company receives from one or more Designated Holders a written request (the “Effectiveness PeriodDemand Request”) (which request shall state the number of shares of Registrable Securities to be disposed of and the intended methods of disposition of such shares by the Designated Holders).
(iii) Subject to , the other limitations contained in this AgreementCompany shall as soon as practicable, Triangle is not obligated hereunder file and use reasonable best efforts to effect (A) no more than two Demand Registrations in any 12 month (2) such registrations during the period from the Required Filing Date to the expiration of the Effectiveness Period (but not more frequently than once per 180 day period, ) and to permit or facilitate the sale and distribution of all of such Registrable Securities. The Company shall file a Shelf Registration Statement on a Form F-3 no later than thirty (B30) more than a total days following its receipt of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other PersonRequest; provided that if the managing underwriterCompany is required to file the Registration Statement on a Form F-1, if any, for then the Underwritten Offering determines that Company shall have seventy-five (75) days from the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time date of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant Request 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause the Registration Statement. The Company shall give written notice at least fifteen (15) days prior to be prepared filing the Registration Statement to all Designated Holders 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle would become subject to general service of process or to taxation or qualification to do business include 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 Registration Statements all Registrable Securities subject of any Designated Holder that has delivered a written request 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 Company to enable the Holders to consummate a public sale of such include its Registrable Securities in accordance with at least five (5) days prior to the intended timing and method or methods filing date of distribution thereofthe applicable Registration Statement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Xinyuan Real Estate Co., Ltd.), Registration Rights Agreement (Xinyuan Real Estate Co., Ltd.)
Demand Registration. During the Demand Period, the Eligible Investors may at any time make a written request for registration of Registrable Securities under the Securities Act, and under the securities or blue sky laws of any jurisdiction reasonably designated by such Investors (collectively, the “Demanding Holders”); provided, that (i) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall Company will not be required to effect a any registration or file a Registration Statement (or any amendment thereto) for a period of up pursuant to 60 days, if (A) this Section 3 unless the Board determines that a postponement Minimum Offering Threshold is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”)met; provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by subject to Section 2(a)(iv)(B3(c) or any Suspension Periodbelow, Triangle shall the Company will not engage in any transaction involving be required to effect more than three registrations at the offer, issuance, sale, or purchase request of Triangle Securities (whether for the benefit of Triangle or a third PersonInvestors pursuant to this Section 3(a), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during the Company will not be required to effect such registration within the period beginning on the effective date of a registration statement to be filed by the Company or on its behalf covering a firm commitment underwritten public offering and ending on the expiration of any Blackout Period contemplated lock-up period (not to exceed one hundred eighty (180) days following the effective date of such registration statement, subject to certain limited extensions in accordance with applicable NASD rules and regulations) required by the underwriters, (iv) the Company will not be required to effect any such registration if the Company has effected a registration pursuant to this Section 2(a)(iv)(B3 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 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 (Cits stockholders for a registration statement to be filed in the near future, then the Company’s obligation pursuant to Section 3(a) or any Suspension Period, Triangle shall not hereof to file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for with the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed Commission relating to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed as to be included in which such offering, the Registrable Securities to be sold by the Holders request for a Demand Registration relates shall be included in such registration before any Triangle Securities proposed deferred for a period not to be sold for exceed ninety (90) days from the account date of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required the Company may not utilize this right more than once in any jurisdiction where, as a result thereof, Triangle 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 twelve (212) 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 thereofmonth period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Republic Companies Group, Inc.), Registration Rights Agreement (Republic Companies Group, Inc.)
Demand Registration. (i) Any At any time after the expiration of the applicable Lock-Up Period, any Preferred Holder that holds any Registrable Securities and Sponsoring Holder shall severally have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for unless the Registrable Securities having 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 $30 million based 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 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 pro rata basis. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of Section 2(a)(iii) if, as a result of the cutback provisions in this Section 2(a)(i) or Registrable Securities of Holders other than the 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 of the Initiating Holder having a VWAP measured on the VWAP of such Registrable Securities as of 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 of (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, Triangle the Company shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafterwithin 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 covering 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 Triangle the Company within three days of Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of such notice of the Demand Notice given by Triangle the Company pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and ). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become effective under the Securities Act 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, which, for the avoidance of doubt shall not be considered an additional Demand Registration for any Holder pursuant to Section 2(a)(iii)) under the Securities Act until all such securities registered for resale thereunder cease to be Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle the Company is not obligated hereunder to effect (A) more than two a Demand Registrations 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 12 month 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 five four Demand Registrations pursuant to this Agreement 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 (CF) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice Initiating Holder shall have become effective under the 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 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) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (A Holder may withdraw all or any amendment theretoportion 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 a period purposes of up to 60 days, if Section 2(a)(iii) unless (A) the Board determines that a postponement is 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 best interest withdrawn registration of Triangle and its stockholders generally due such Registrable Securities (based on the number of securities the Initiating Holder sought to a pending transaction involving Triangleregister, as compared to the total number of securities included in such Demand Registration) or (B) the Board determines such registration would render Triangle unable withdrawal is made following the occurrence of a Material Adverse Change or pursuant to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose Company’s request for preserving as confidential (any such period, a “Blackout Period”suspension pursuant to Section 3(o); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle The Company may include in any such Demand Registration other Triangle Company Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed subject to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other PersonSection 2(c)(iii).
(vi) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible A) as shall be selected by the Company and (B) subject to register for resale applicable law and the requirements of the Commission, 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, subject to Section 3(o), (X) if the Registration Statement is on Form S-3S-1, the Company shall maintain the effectiveness of the Registration Statement then in which case 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 shall be effected on another appropriate form for such purpose pursuant to Registration), and (Y) if the Securities Act) and if Triangle 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 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 effected pursuant to registered on an Automatic Shelf Registration Statement, which shall be Statement on Form S-3 or any equivalent or successor form under the Securities Act (if available to Trianglethe Company); provided, however, that if . If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, 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 states jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
(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 shall the Company be required to 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 the Holder, Affiliates of the Holder or transferees of the Holder.
(ix) Notwithstanding the foregoing restrictions of this Section 2(a), but subject to any applicable No Demand Periods, the Preferred Holders shall be permitted to deliver a Demand Notice for a Demand Registration during the Lock-Up Period so long as (A) the Company is then-eligible to use Form S-3 to register the resale of Registrable Securities and (B) the Preferred Holders do not dispose of any Registrable Securities pursuant to the applicable Registration Statement for the duration of the 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 limited to, a Preferred Holder’s participation in a Demand 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 Initiating Holder during its Lock-Up Period pursuant to Section 2(a)(i) and (Z) exercising its right to receive a Piggyback Notice or to participate in any Piggyback Registration during its Lock-Up Period with respect to the filing of a registration statement for the sale of securities solely for the account of the Company, which registration statement, for the avoidance of doubt, does not include Registrable Securities of any Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (WildHorse Resource Development Corp), Stock Issuance Agreement (WildHorse Resource Development Corp)
Demand Registration. (ia) Any In the event that the SB-2 Registration Statement is not filed by the Company within 125 days from the date hereof pursuant to Section 1.2 hereof, a Holder or Holders shall be entitled to initiate registration request hereunder (“Initiating Holders) The Initiating Holders shall so advise the Company in writing that holds any the Company file a registration statement under the Act registering the Registrable Securities Securities. The Company shall have file a Form SB-2 Registration Statement no later than 45 days from the option date of such registration request and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” be declared effective not later than 90 days from the date thereof. The Company and the Holder shall further agree that delivers such a Demand Notice, filing will satisfy the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be piggyback registration rights given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle Holder pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that such inclusion satisfies such obligation only if the registration statement is declared effective not later than 90 days from the date of the request from the Initiating Holders.
(ib) in no event Notwithstanding the foregoing, if the Company shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file furnish to Holders requesting a registration statement (or any amendment or supplement thereto) pursuant to this Section 1.3, 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 and its stockholders for any other holder such registration statement to be filed owing to a material pending transaction and it is therefore essential to defer the filing of such registration rightsstatement, the Company shall have the right to defer taking action with respect to such filing for a period of not more than 120 days after receipt of the request of the Initiating Holders.
(vc) Triangle may include In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 1.3 in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such Demand Registration other Triangle Securities for sale for its own account registration, qualification or for compliance, unless the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed Company is already subject to be offered service in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (jurisdiction and except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereofAct.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Miscor Group, Ltd.)
Demand Registration. 2.1.1 If at any time and from time to time on or after the date hereof, the Company shall receive a request from one or more Holders (i) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand NoticeHolders, the “Initiating HolderRequesting Shareholders”)) that the Company, to require Triangle to, pursuant to effect a registration under the terms Securities Act of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale all or any portion of the number and type of Requesting Shareholder’s Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with Securities, specifying the intended timing and method or methods of distribution thereof specified in the Demand Noticedisposition thereof, which may include sales on a delayed or continuous basis pursuant including whether to Rule 415 be conducted via an underwritten offering (each such request shall be referred to herein as a “Demand Registration”), the Company shall use its reasonable best efforts to effect, as expeditiously as possible, and in no event later than 45 Business Days after the receipt of such request, the 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 Notice must set forth Registration (and in no event later than 15 Business Days or 5 Business Days in the number case of Registrable Securities that a Bought Deal prior to the Initiating Holder intends anticipated filing date of the Registration Statement relating to include in such Demand Registration. Notwithstanding anything ) to the contrary hereinother Holders with respect to all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholders (all such Holders, together with the Requesting Shareholders, and any other Holders participating in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value or Piggyback Registration, the “Registering Shareholders”) that such Holders have the right to request the Company to register by request received by the Company within 10 Business Days, or 2 Business Days in the case of less than $30 million based on the VWAP of such Registrable Securities as of a Bought Deal, after the date of the Demand Notice.
(ii) Within five Business Days of the receipt Company’s notice of the Demand NoticeRegistration, Triangle and the Company shall give written notice of use reasonable best efforts to include all Registrable Securities requested to be registered by the Registering Shareholders in such Registration Statement. Notwithstanding the foregoing, the Company shall not be obligated to effect a Demand Notice Registration (i) unless the aggregate proceeds expected to all Holders and, as soon as reasonably practicable thereafter, shall, subject to be received from the limitations of this Section 2(a), file a Registration Statement covering all sale of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) requested to be included in such Demand Registration as promptly as practicable as directed by equals or exceeds $30,000,000 and (ii) if the Initiating Holder Company shall have effected a Demand Registration in accordance with which Holders had the terms and conditions opportunity to sell Registrable Securities within the three-month period prior to receipt of the Demand Notice Registration.
2.1.2 At any time prior to the Public Offering Launch of a Demand Registration, the Requesting Shareholders may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request.
2.1.3 The Company shall be liable for and use pay all commercially reasonable efforts Registration Expenses in connection with any Demand Registration, regardless of whether (i) such Demand Registration is completed or (ii) a Requesting Shareholder sells Registrable Securities pursuant to cause such 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 to become effective under is interfered with by any cease trade or stop order, injunction or other order or requirement of the Securities Act and remain effective under Commission or any other governmental agency or court or (2) less than 75% of the Securities Act until all Registrable Securities covered by included in such Registration Statement have been sold (the “Effectiveness Period”).thereunder; or
(iiib) Subject to if the other limitations contained Maximum Offering Size is reduced in this Agreement, Triangle is not obligated hereunder to effect (A) more accordance with subsection 2.1.5 such that less than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all 75% of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed Requesting Shareholders sought to be included in such offeringregistration are included.
2.1.5 If a Demand Registration involves an underwritten Public Offering and the managing underwriters advise the Company and the Registering Shareholders that, in their view, the amount of Registrable Securities requested to be sold by the Holders shall be included in such registration before Demand Registration (including any Triangle securities that the Company proposes to include) exceeds the largest amount of Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold (the “Maximum Offering Size”), the Company 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 the Registering Shareholders (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 Registrable Securities beneficially owned by such Registering Shareholders); and
(b) second, any securities proposed to be sold for the account of Triangle or registered by any other PersonPersons (including the Company), with such priorities among them as the Company shall determine.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any 2.1.6 The Company may postpone effecting a Demand Registration on Form S-3 one occasion during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 60 days (except which period may not be extended or renewed), if Triangle the Company provides a certificate signed by the principal executive officer of the Company stating that in the good faith judgement of the Board that it would be seriously detrimental to the Company and its shareholders for such Demand Registration to be effected at such time. It is not then eligible agreed that the existence or anticipation of a material acquisition or financing activity will be sufficient reason for the Company to register 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 resale a Shelf Registration with respect to the Registrable Securities on Form S-3, 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 which case such any underwritten Public Offering shall be 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 effected on another appropriate form deemed to be 25 business days; provided, further that none of (x) the filing of a Shelf Prospectus or (y) the filing of Shelf Prospectus Supplement that does not relate to an underwritten Public Offering and is only for such the purpose of updating a Shelf Prospectus with the identities of any 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 the this subsection 2.1.7 if such Holder’s Registrable Securities Act) and if Triangle becomesmay, and is at the time of its receipt of a Demand Noticesuch request, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected resold 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is previously filed by the Company and declared effective and a Holder provides written by the Commission. The Company shall give notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Shelf Registration pursuant to and the procedures in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereofsubsection 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.)
Demand Registration. (i) Any 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 Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 50 million based on the VWAP of such Registrable Securities as of the date of the Demand NoticeNotice (the “Minimum Amount”).
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle the Company shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafterwithin thirty days thereof (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within ninety days thereof), shall, subject to the limitations of this Section 2(a), file a Registration Statement covering 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 (such request to be given to Triangle the Company within three ten days of receipt of such notice of the Demand Notice given by Triangle the Company pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and Registration. The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become effective under the Securities Act 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, Triangle the Company is not obligated hereunder to effect (A) more than two a Demand Registrations in Registration within 90 days of the closing of any 12 month periodUnderwritten Offering, (B) more than a total of five three Demand Registrations pursuant to this Agreement Agreement, and (C) a subsequent 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 a Section 2(a)(ii), in which case the Initiating Holder shall be entitled to an additional Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the 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 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 Noticelieu thereof.
(iv) Notwithstanding An Initiating Holder and any other provision of this Section 2(a), Triangle shall not Holder that has requested its Registrable Securities be required to effect included in a registration or file a Demand Registration Statement (may withdraw all or any amendment theretoportion 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 the Initiating Holder to the effect that the Initiating Holder is withdrawing all or an amount such that the remaining amount is below the Minimum Amount of its Registrable Securities to be included in a Demand Registration, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration shall be deemed a Demand Registration unless (i) the Initiating Holder shall have paid or reimbursed the Company for a period its pro rata share of up 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 60 daysregister, if as compared to the total number of securities included in such Demand Registration) or (ii) the withdrawal is made (A) following the Board determines that occurrence of a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, Material Adverse Change or (B) because the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration Registration would require disclosure of material information that Triangle the Company has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rightsconfidential.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible to register for resale x) as shall be selected by the Company and (y) as shall permit the disposition of the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form accordance with the intended method or methods of disposition specified in the applicable Holders’ requests for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if registration. If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viivi) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 2 contracts
Sources: Agreement of Limited Partnership (Rice Energy Inc.), Limited Liability Company Agreement (Rice Energy Inc.)
Demand Registration. At any time after the earlier to occur of ------------------- (i) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 last day of the number and type of Registrable Securities on third Agreement Year or (ii) six (6) months after 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the effective date of the Demand Notice.initial public offering of any of the Company's securities, if the Company receives from the holders of at least 30% of the then-outstanding Registrable Securities, other than holders of Existing Common Shares, (or, if at the time of such request, the Company has not yet been declared effective on a registration statement for the initial public offering of its Common Stock, holders of at least 60% of the then-outstanding Registrable Securities), a written request that the Company effect any registration or qualification with respect to the Registrable Securities, the Company will:
(ii1) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request within ten (such request to be given to Triangle within three 10) days of receipt of such a request, give written notice of the proposed registration or qualification to all other holders of Registrable Securities; and
(2) as soon as practicable, effect such registration or qualification (including, without limitation, the execution in the applicable Registration Statement of an undertaking to file required post-effective amendments, appropriate qualification under the applicable blue sky or other state securities laws and appropriate compliance with exemptive regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as are reasonably necessary to permit or facilitate the sale and distribution of all or such portion of such holder's or holders' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other holder or holders joining in such request, or the Company in the case of securities requested by the Company to be registered (provided, however, the Company and the holders of -------- ------- Existing Common Shares shall be permitted to participate in such registration only to the extent that all Registrable Securities (other than Existing Common Shares) as are specified by any holder in a Demand Notice Registration request have been included in such registration), as are specified in a written notice given by Triangle to the Company within 20 days after the date of such written notice from the Company pursuant to Section 3(b)(1); provided, however that the Company -------- ------- will not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 2(a)(ii3(b) after the completion of two (2) Demand Registrations as set forth in Section 3(c)) . Subject to the foregoing provisions, the Company will file a registration statement covering the Registrable Securities so requested to be included registered as soon as practicable, but in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions any event within one hundred twenty (120) days, after receipt of the Demand Notice request or requests of the initiating holders, and shall use all commercially reasonable its best efforts to cause such Registration Statement and Prospectus through which such Demand Registration is effected to become effective under the Securities Act and remain effective under until the Securities Act until earlier of: (i) two years from the effective date or (ii) the date on which all Registrable Securities covered by such Registration Statement have been are sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held or withdrawn by the Holders providing such Demand Notice shall have become effective under the 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 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 Noticeparticipating holders.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Registration Rights Agreement (Fresh Enterprises Inc)
Demand Registration. (i) Any At any time after the expiration of the Lock-Up Period, any Sponsoring Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for unless the Registrable Securities having of the Sponsoring Holder and its Affiliates to be included therein have an aggregate value of less than $30 million value, based on the VWAP of such Registrable Securities as of the date of the Demand Notice, of at least $50 million (the “Minimum Amount”).
(ii) Within five thirty Business Days of after the receipt of the Demand NoticeNotice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, Triangle shall give written notice of such Demand Notice to all Holders andin which case, as soon as reasonably practicable thereafterwithin ninety days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act 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 and (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, Triangle the Company is not obligated hereunder to effect (A) more than two a Demand Registrations in Registration within 90 days after the closing of any 12 month periodUnderwritten Offering, or (B) more than a total of five 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 held by the Holders providing such Demand Notice Initiating Holder shall have become effective under the 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 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) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (A Holder may withdraw all or any amendment theretoportion 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 Shares such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) for a period of up to 60 days, if unless (A) the Board determines that a postponement is 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 best interest withdrawn registration of Triangle and its stockholders generally due such Registrable Securities (based on the number of securities the Initiating Holder sought to a pending transaction involving Triangleregister, as compared to the total number of securities included in such Demand Registration) or (B) the Board determines such registration would render Triangle unable withdrawal is made following the occurrence of a Material Adverse Change or pursuant to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose Company’s request for preserving as confidential (any such period, a “Blackout Period”suspension pursuant to Section 3(o); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle The Company may include in any such Demand Registration other Triangle Company Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed subject to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other PersonSection 3(c)(iii).
(vi) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible to register for resale A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities on Form S-3, in which case such accordance with the intended method or methods of disposition specified in the Demand Registration shall be effected on another appropriate form for such purpose pursuant to Notice; provided that if the Securities Act) and if Triangle Company 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 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 Trianglethe Company); provided, however, that if . If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, 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 states jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
(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 shall the Company be required to 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 the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Demand Registration. (ia) Any Holder that holds At any time after the first anniversary of the date of the consummation of the Purchaser's initial public offering under the Securities Act, the Holders of 50% or more of the then outstanding Registrable Securities shall have the option and right, exercisable by delivering may make a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant request to the terms of and subject Purchaser to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the register such number and type of Registrable Securities on under the terms and conditions specified Securities Act as such Holders may request in writing to 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 Purchaser (such requests are referred to herein as a delayed or continuous basis pursuant to Rule 415 (a “"Demand Registration”"). The Demand Notice must set forth Any such request from the Holders shall specify the number of Registrable Securities that proposed to be sold and the Initiating Holder intends to include in such Demand Registrationintended method of distribution thereof. Notwithstanding anything Subject to the contrary hereinpenultimate sentence of Section 11.1(b), in the Purchaser shall have no event shall Triangle be required obligation to effectuate file more than one (1) registration statement under the Securities Act with respect to a Demand Registration for and shall have no obligation to register any Registrable Securities having an aggregate value of less than $30 million based on the VWAP of with respect to a Demand Registration unless such Registrable Securities as may be registered on a Form S-3 registration statement (or any successor form with similar "short-form" disclosure permitting the inclusion or incorporation of information by reference to other documents filed by the date of Purchaser with the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle Commission). The Purchaser shall give written notice of any such Demand Notice requests to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request within thirty (such request to be given to Triangle within three 30) days of after receipt thereof. Within fifteen (15) days after receipt of such notice by the Holder, the Holder may request in writing that any of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to his Registrable Securities be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance registration statement with the terms and conditions of respect to the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”)Registration.
(iiib) Subject Except as otherwise provided in Section 11.1 hereof, a registration will not be deemed to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than be a total of five 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 held unless it has been declared effective by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”)Commission; provided, however, that (i) in no event shall if, after the registration statement has been declared effective by the Commission, the offering of Registrable Securities pursuant to such registration statement is or becomes subject to any Blackout Period together with any Suspension Period collectively exceed an aggregate stop order, injunction or other order or requirement of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) the Commission or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, saleother governmental or administrative agency, or purchase of Triangle Securities (whether for if any court prevents or otherwise limits the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed pursuant to the registration statement, such registration statement will be deemed not to have been effected for purposes of this Section 11.1. If a registration statement requested pursuant to this Section 11.1 is deemed not to have been effected, then the Purchaser shall continue to be included obligated to effect a Demand Registration in such offering, accordance with this Section 11.
1. The Holders shall be permitted to withdraw all or any part of the Registrable Securities to be sold by the Holders shall be included in such registration before offered for their benefit at any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject time prior to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time effective date 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 Triangle)Registration; provided, however, that if at any time a Registration Statement on Form S-3 is effective the withdrawing holders shall be responsible for all fees and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 expenses incurred by them prior 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, Triangle 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 thereofwithdrawal.
Appears in 1 contract
Demand Registration. (ia) Any Holder that holds At any time during the Warrant Exercise Term, the Holders of Registrable Securities representing a "Majority" (as defined in Section 7.4(i)) of such securities (assuming the exercise of all of the Warrants) shall have the option and rightright (which right is in addition to the rights under Section 7.2 hereof), exercisable by delivering a written notice to Triangle the Company (a “the "Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”Registration Request"), to require Triangle to, pursuant to have the terms of and subject to the limitations contained in this Agreement, Company prepare and file with the Commission Commission, on one occasion, a Registration Statement registering registration statement and such other documents, including a prospectus, as may be necessary in the opinion of both counsel for the Company and counsel for such Holders, in order to comply with the provisions of the Act, so as to permit a public offering and sale of the number and type of their respective Registrable Securities on for twelve (12) consecutive months by such Holders and any other Holders of 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 who notify the Initiating Holder intends Company within ten (10) days after receiving notice from the Company of such request.
(b) The Company covenants and agrees to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a give written notice of any Demand Registration for Request to all registered Holders of the Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of within ten (10) days from the date of the Company's receipt of any such Demand Registration Request (the "Demand Registration Notice.
"). Such Demand Registration Notice shall state that Holders have the right to have the Company include their Registrable Securities in such registration statement, provided that the Holders notify the Company in writing within ten (ii10) Within five Business Days days. After receiving a Demand Registration Notice from the Company as provided within Section 7.3(b) hereof, the Holders of Registrable Securities may request that the Company include their Registrable Securities in the registration statement to be filed pursuant to Section 7.3(a) hereof by notifying the Company in writing within ten (10) days of their receipt of the Demand Registration Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) the Company may delay the filing of the registration statement for an additional period of thirty (30) days beyond the period specified in no event shall any Blackout Period together Section 7.4(a) if, at the time of receipt of a Demand Registration Request, there is pending with any Suspension Period collectively exceed the Company an aggregate of 120 days undisclosed material transaction that would be required to be disclosed in any 12 month period, such registration statement; and (ii) during any Blackout Period contemplated by the Company's obligations pursuant to Section 2(a)(iv)(B7.4(a) or any Suspension Period, Triangle hereof are contingent upon the Holders' compliance with their obligations under this Agreement.
(c) The Company shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not be required to file a registration statement pursuant to a Demand Registration Request if within twenty (or any amendment or supplement thereto20) for any other holder of registration rights.
(v) Triangle may include in any days after it receives such Demand Registration other Triangle Securities for sale for its own account or for Request, the account Company commits in writing to purchase (i) any and all Warrants at the price equal to the Market Price described in clause (ii) of this sentence, less the Exercise Price of such Warrants, and (ii) any other Person; provided that if and all Warrant Shares at the managing underwriter, if any, for price per share of the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect Common Stock's Market Price on the price, timing or distribution date of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 Request. Such repurchases shall be effected by certified or bank check and shall occur within ten (10) days after the date the Company makes such written commitment. Nothing in this Section 7.3(c) shall obligate any Holder to sell any Warrant and/or Warrant Share to the Company 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placecommitment.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Demand Registration. (i) Any Subject to Section 2(f), at any time or from time to time after the six-month anniversary of the Effectiveness Date, any Holder that holds any whose Registrable Securities shall have were excluded from the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 in accordance with the intended timing and method provisions of Section 2(d) shall have the right to request in writing that the Company register all or methods part of distribution thereof specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 such Holder's previously excluded Registrable Securities (a “Demand Registration”). The Demand Notice must set forth "REQUEST") (which Request shall specify the number amount of Registrable Securities that intended to be disposed of by such Holder and the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to intended method of disposition thereof) by filing with the contrary herein, in no event shall Triangle be required to effectuate SEC a Demand Registration Statement. In the event that Form S-3 is unavailable for Registrable Securities having an aggregate value such a registration, the Company shall use such other form as is available for such a registration on another appropriate form reasonably acceptable to the requesting Holder(s), subject to the provisions of less Section 2(h). As promptly as practicable, but no later than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the 10 days after receipt of a Request, the Demand Notice, Triangle Company shall give written notice of such Demand Notice requested registration to all Holders andof Registrable Securities which were previously excluded. Subject to Section 2(f), the Company shall include in a Demand Registration (i) the Registrable Securities intended to be disposed of by the requesting Holder(s) and (ii) the Registrable Securities intended to be disposed of by any other Holder which shall have made a written request (which request shall specify the amount of Registrable Securities to be registered and the intended method of disposition thereof) to the Company for inclusion thereof in such registration within 20 days after the receipt of such written notice from the Company. The Company shall, as soon expeditiously as reasonably practicable thereafterpossible following a Request, shall, subject use its best efforts to cause to be filed with the limitations of this Section 2(a), file SEC a Demand Registration Statement covering all providing for the registration under the Securities Act of the Registrable Securities that which the Holders shall Company has been so requested to register in writing request (accordance herewith by all such request Holders, to the extent necessary to permit the disposition of such Registrable Securities so to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 on the terms and conditions specified in the Demand Notice registered in accordance with the intended timing and method or methods of distribution disposition thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle such Request or further requests. The Company shall not be required use its best efforts to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any have such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold Statement declared effective by the Holders shall be included in such registration before any Triangle Securities proposed SEC as soon as practicable thereafter and to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case keep such Demand Registration shall be effected on another appropriate form Statement continuously effective for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangleperiod specified in Section 2(h); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Registration Rights Agreement (Aerobic Creations, Inc.)
Demand Registration. (i) Any Upon request from any Holder that holds Group at any Registrable Securities shall have time after the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and 180th day after the Holder that delivers such a Demand Noticedate hereof, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, Partnership shall prepare and file with the Commission a Registration Statement registering registration statement under the offering and sale Securities Act providing for the resale of the number and type Registrable Securities, which may, at the option 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 Holder Group making such Demand Notice, which may include sales on be a delayed or continuous basis registration statement that provides for the resale of the Registrable Securities from time to time pursuant to Rule 415 under the Securities Act (a the “Demand RegistrationRegistration Statement”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
Within two (ii2) Within five Business Days business days of the receipt of the Demand Notice, Triangle the Partnership shall give written notice of such Demand Notice to all Holders andHolders, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that and the Holders shall in writing request have three (such request to be given to Triangle within three 3) business days of following receipt of such notice of the Demand Notice given from the Partnership to request through such Holder’s Holder Group representative set forth in Section 3.01 in writing (including by Triangle electronic mail) to the Partnership to be included as a seller of Registrable Securities in such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. The Registration Statement shall provide for the resale pursuant to this Section 2(a)(ii)) any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement (including those elected to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions Statement following notice of the a Demand Notice and from the Partnership pursuant to this Section 2.01). The Partnership shall use all its commercially reasonable efforts to cause such the Registration Statement filed pursuant to become effective under this Section
2.01 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities Act and remain effective under by the Securities Act Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a . The Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Securities Act and is sufficient to permit offers and sales statements therein not misleading. As soon as practicable following the date that the Registration Statement becomes effective, but in any event within two (2) business days of such date, the Partnership shall provide the Holders with written notice of the number and type effectiveness 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.
Registration Statement. Each Holder Group shall be limited to one (iv1) Notwithstanding any other provision of demand registration under this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement 2.01 in any twelve-month period (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that there shall be no limit on the number of Shelf Registration Statements that may be required by the Holders hereunder), and the Partnership shall not be obligated to file more than one (i1) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of Registration Statement within 120 days in after the effective date of any 12 month period, (ii) during Registration Statement filed by the Partnership. Once a Holder’s Registrable Securities become eligible for resale without restriction and without the need for current public information pursuant to any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase section of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement Rule 144 (or any amendment or supplement theretosimilar provision then in effect) for any other holder under the Securities Act, assuming the Holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, an affiliate (as defined in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to Rule 144(a)(1) under the Securities Act) of the Partnership, the applicable Holder Group may, at any time, request that the Partnership take such steps as are reasonably necessary to deregister such Holder’s Registrable Securities. In connection with such request, such Holder’s rights under this Agreement shall all be terminated, including without limitation the right to demand an Underwritten Offering and if Triangle becomesthe right to participate in a Piggyback Registration, and is at such Holder shall no longer be subject to any obligations under this Agreement, including without limitation 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 obligation to enter into letter agreements with underwriters 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeSection 2.12.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Registration Rights Agreement (PennTex Midstream Partners, LP)
Demand Registration. (i) Any Upon request from any Holder that holds Group at any Registrable Securities shall have time after the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and 180th day after the Holder that delivers such a Demand Noticedate hereof, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, Partnership shall prepare and file with the Commission a Registration Statement registering registration statement under the offering and sale Securities Act providing for the resale of the number and type Registrable Securities, which may, at the option 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 Holder Group making such Demand Notice, which may include sales on be a delayed or continuous basis registration statement that provides for the resale of the Registrable Securities from time to time pursuant to Rule 415 under the Securities Act (a the “Demand RegistrationRegistration Statement”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
Within two (ii2) Within five Business Days business days of the receipt of the Demand Notice, Triangle the Partnership shall give written notice of such Demand Notice to all Holders andHolders, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that and the Holders shall in writing request have three (such request to be given to Triangle within three 3) business days of following receipt of such notice of the Demand Notice given from the Partnership to request through such Holder’s Holder Group representative set forth in Section 3.01 in writing (including by Triangle electronic mail) to the Partnership to be included as a seller of Registrable Securities in such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. The Registration Statement shall provide for the resale pursuant to this Section 2(a)(ii)) any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement (including those elected to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions Statement following notice of the a Demand Notice and from the Partnership pursuant to this Section 2.01). The Partnership shall use all its commercially reasonable efforts to cause such the Registration Statement filed pursuant to become effective under this Section 2.01 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities Act and remain effective under by the Securities Act Holders until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a . The Registration Statement covering when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Securities Act and is sufficient to permit offers and sales statements therein not misleading. As soon as practicable following the date that the Registration Statement becomes effective, but in any event within two (2) business days of such date, the Partnership shall provide the Holders with written notice of the number and type effectiveness 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.
Registration Statement. Each Holder Group shall be limited to one (iv1) Notwithstanding any other provision of demand registration under this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement 2.01 in any twelve-month period (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that there shall be no limit on the number of Shelf Registration Statements that may be required by the Holders hereunder), and the Partnership shall not be obligated to file more than one (i1) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of Registration Statement within 120 days in after the effective date of any 12 month period, (ii) during Registration Statement filed by the Partnership. Once a Holder’s Registrable Securities become eligible for resale without restriction and without the need for current public information pursuant to any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase section of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement Rule 144 (or any amendment or supplement theretosimilar provision then in effect) for any other holder under the Securities Act, assuming the Holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, an affiliate (as defined in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to Rule 144(a)(1) under the Securities Act) of the Partnership, the applicable Holder Group may, at any time, request that the Partnership take such steps as are reasonably necessary to deregister such Holder’s Registrable Securities. In connection with such request, such Holder’s rights under this Agreement shall all be terminated, including without limitation the right to demand an Underwritten Offering and if Triangle becomesthe right to participate in a Piggyback Registration, and is at such Holder shall no longer be subject to any obligations under this Agreement, including without limitation 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 obligation to enter into letter agreements with underwriters 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeSection 2.12.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Registration Rights Agreement (PennTex Midstream Partners, LP)
Demand Registration. Subject to Sections 3.1(c) and (id) Any and 3.2 hereof, each Designated Holder that holds any Registrable Securities shall have the option and right(in such capacity, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the an “Initiating Holder”), to require Triangle to, pursuant ) may deliver to the terms Company a written notice (a “Registration Notice”) informing the Company of his/her or its desire to have his/her or its Registrable Securities registered for sale and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of specifying the number and type of Registrable Securities on to be registered by the terms Company and conditions specified in the Demand Notice in accordance with the intended timing method of disposition thereof and method or methods of distribution thereof specified in the Demand Notice, which may include sales on a delayed or continuous basis that such request is being made pursuant to Rule 415 this Section 3.1(a) (a “Demand Registration”). The Demand Notice must set forth Company may cause the number of Registrable Securities that are the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate subject of a Demand Registration for Registrable made in accordance with the immediately preceding paragraph to be included as part of an existing shelf registration statement and related prospectus that the Company then has on file with, and which has been declared effective by, the Commission under the Securities having Act, or otherwise become effective thereunder, and which remains effective and not subject to any stop order of the Commission (an aggregate value of less than $30 million based on the VWAP “Existing Shelf Registration Statement”). Absent inclusion of such Registrable Securities as of in an Existing Shelf Registration Statement and subject to Sections 3.1(c) and (d) and 3.2 hereof, the date of Company shall file with the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, Commission as soon as reasonably practicable thereafterafter receiving a Registration Notice, shall, subject but in any event prior to the limitations later of this Section 2(a), file a Registration Statement covering all (i) the first Business Day following the expiration of the Registrable Securities that periods referred to in the Holders shall in writing request lock-up letters delivered pursuant to the Stock Purchase Agreement (such request to be given to Triangle within three days of collectively, the “Lock-Up Agreement”) and (ii) the sixtieth (60th) day following the Company’s receipt of such notice Registration Notice, a new registration statement and related prospectus (which may take the form of a Shelf Registration Statement in the sole discretion of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)Company) to be included in such Demand (a “New Registration as promptly as practicable as directed Statement”) providing for the offer and sale by the Initiating applicable Designated Holder in accordance with the terms of such Registrable Securities and conditions of the Demand Notice and agrees to use all its commercially reasonable efforts to cause such New Registration Statement to become be declared effective by the Commission under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by as soon as practicable thereafter (unless such New Registration Statement have been sold (the “Effectiveness Period”is automatically effective upon filing).
(iii) Subject , in each case giving due regard to the need to prepare current financial statements, conduct due diligence and complete other limitations contained in this Agreement, Triangle is not obligated hereunder actions necessary to effect a registered public offering of securities. As used herein, “Registration Statement” and “Prospectus” refer to a registration statement on a form the Company is then eligible to use and related prospectus (Aincluding any preliminary prospectus and prospectus supplement) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations filed with the Commission 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold utilized by the Holders shall be included in such registration before any Triangle Securities proposed Company to be sold for the account of Triangle or any other Person.
(vi) Subject satisfy a Designated Holder’s Registration Rights pursuant to the limitations contained in this Agreement, Triangle shall effect including an Existing Shelf Registration Statement and related prospectus (including any Demand preliminary prospectus and prospectus supplement) or a New Registration on Form S-3 Statement and related prospectus (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3including any preliminary prospectus and prospectus supplement), including, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomeseach case, 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 documents incorporated or any equivalent or successor form under the Securities Act (if available to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause deemed 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 incorporated therein 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 thereofreference.
Appears in 1 contract
Sources: Registration Rights Agreement (LoanCore Realty Trust, Inc.)
Demand Registration. (i) Any Holder that holds At any Registrable Securities time after the expiration of the Lock-Up Period, any Holder(s) shall have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 Holder(s) intend to include in such Demand RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for unless the Registrable Securities having of the Initiating Holder(s) and their respective Affiliates to be included therein have an aggregate value of less than $30 million value, based on the VWAP of such Registrable Securities as of the date of the Demand Notice, of at least $7.5 million or all of the Registrable Securities then held by such Initiating Holder (the “Minimum Amount”).
(ii) Within five 45 Business Days of after the receipt of the Demand NoticeNotice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, Triangle shall give written notice of such Demand Notice to all Holders andwithin 60 days thereof), as soon as reasonably practicable thereafter, the Company shall, subject to the limitations of this Section 2(a2(b), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act and remain effective as soon as reasonably practicable after the filing thereof under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle the Company is not obligated hereunder to effect (A) file more than two three registrations for each Holder or its affiliates as requested in a Demand Registrations in any 12 month period, Registration by such Holder or its affiliates pursuant to this Section 2(b); (B) more than a total of five Demand Registrations file any Registration Statement pursuant to this Agreement a Demand Registration within 90 days after the closing of any Requested Underwritten Offering, unless as a result of Section 2(e), the Requested Underwritten Offering includes less than (the “Requested Underwritten Offering Minimum Condition”) the lesser of (i) Registrable Securities of the Initiating Holder(s) having an aggregate value, based on the VWAP as of the effective date of the related Registration Statement, of $7.5 million, and (ii) two-thirds of the number of Registrable Securities the Initiating Holder(s) set forth in the applicable Underwritten Offering Notice, or (C) effect a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice Initiating Holder(s) shall have become effective under the 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 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(b)(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(s) shall be entitled to an additional Demand Registration in lieu thereof.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (A Holder may withdraw all or any amendment thereto) for portion of its Registrable Securities included in a period Demand Registration from such Demand Registration at any time prior to the effectiveness of up the applicable Registration Statement. Upon receipt of a notice from an Initiating Holder that such Initiating Holder is withdrawing an amount of its Registrable Securities such that the remaining amount of Registrable Securities to 60 days, if (A) the Board determines that a postponement is be included in the best interest Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rightsRegistration Statement.
(v) Triangle The Company may include in any such Demand Registration other Triangle Company Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed subject to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other PersonSection 2(e).
(vi) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible to register for resale A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities on Form S-3, in which case such accordance with the intended method or methods of disposition specified in the Demand Registration shall be effected on another appropriate form for such purpose pursuant to Notice; provided that if the Securities Act) and if Triangle Company 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 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 Trianglethe Company); provided, however, that if and shall not count as one of the two Demand Registrations for purposes of Section 2(b)(iii). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Registration Rights Agreement (OneWater Marine Inc.)
Demand Registration. (i) Any Holder that holds If at any time after the Company completes an Initial Public Offering, the Holders of at least 30% of the Registrable Securities shall have the option and right, exercisable by delivering make a written notice request to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice"Demanding Holders"), the “Initiating Holder”), Company shall cause there to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file be filed with the Commission a Registration Statement registering registration statement meeting the offering and sale requirements of the Securities Act (a "Demand Registration"), and each Demanding Holder shall be entitled to have included therein (subject to SECTION 3.6) all or such number and type of such Demanding Holder's Registrable Securities on Securities, as the terms and conditions specified Demanding Holder shall request 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 writing. Any request made pursuant to Rule 415 (a “Demand Registration”). The Demand Notice must set forth this SECTION 3.1 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate request is for a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Noticepursuant to this SECTION 3.1(i).
(ii) Within five Business Days Whenever the Company shall have received a demand pursuant to Section 3.1) to effect the registration of any Registrable Securities, the receipt of the Demand Notice, Triangle Company shall promptly give written notice of such Demand Notice proposed registration to all Holders andHolders. Any Holder may, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request within twenty (such request to be given to Triangle within three 20) days of after receipt of such notice notice, request in writing that all of the Demand Notice given such Holder's. Registrable Securities, or any portion thereof designated by Triangle pursuant to this Section 2(a)(ii)) to such Holder, be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”)registration.
(iii) Subject to SECTION 3.6, in connection with an underwritten offering, the Company and, with the approval of the Company, other limitations contained holders of Common Stock (other PSYCH SYSTEMS HOLDINGS REGISTRATION RIGHTS AGREEMENT [EXECUTION COPY] than Holders) shall be given the opportunity to include shares of Common Stock in this Agreementsuch offering ("Other Included Shares").
3.2. Following receipt of a request for a Demand Registration, Triangle is not obligated hereunder the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company's best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance 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 registered public offering.
(Aii) more than Use the Company's best efforts to keep the Demand Registration Statement Continuously Effective for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registrations Registration Statement shall have been disposed of in the manner described in the Registration Statement, or such earlier time as the Company would not have any 12 month periodobligation to include the Registrable Securities that have not been disposed of in the manner described in the Registration Statement in a registration pursuant to SECTION 3 or SECTION 4 pursuant to the definition of "Registrable Securities." Notwithstanding the foregoing, (B) if for any reason the effectiveness of a registration pursuant to this SECTION 3 is suspended the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
3.3. The Company shall be obligated to effect no more than a total of five three Demand Registrations pursuant Registrations, only two of which need be on Form S-1 or its equivalent. For purposes of the preceding sentence, the registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the 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 are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement and (C) Agreement, a subsequent right to a Demand Registration pursuant to a Demand Notice if a Registration Statement covering this Section 3 shall be deemed to have been satisfied upon the earlier of (i) the date as of which all of the Registrable Securities held by included therein shall have been disposed of pursuant to the Holders providing Registration Statement, and (ii) the date as of which such Demand Notice Registration shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) been Continuously Effective for a period of up two hundred seventy (270) days. Any Demand Registration Statement which, after filing with the Commission is withdrawn by the Holders, shall be deemed to 60 days, if (A) have been effective in determining the Board determines that a postponement number of Demand Registrations the Company is in obligated to effect hereunder.
3.4. A registration pursuant to this SECTION 3 shall he on such appropriate registration form of the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving Commission as confidential (any such period, a “Blackout Period”); provided, however, that shall (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, be selected by the Company and be reasonably acceptable to the Demanding Holders and (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving permit the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution disposition of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 PSYCH SYSTEMS HOLDINGS REGISTRATION RIGHTS AGREEMENT Registrable Securities in accordance with the intended timing and method or methods of distribution thereofdisposition specified in the request pursuant to SECTION 3.1(i).
3.5. If any registration pursuant to SECTION 3 involves an underwritten offering (whether on a "firm," "best efforts" or "all reasonable efforts" basis or otherwise), or an agented offering, the Demanding Holders, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provide , however, that each Person so selected shall be reasonably acceptable to the Company.
3.6. Whenever the Company shall effect a registration pursuant to this SECTION 3 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: 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 Demanding Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range; first for the account of the Demanding Holders, second by all other Selling Holders on a pro rata basis and third by the Company and other holders with respect to the Other Included Shares.
Appears in 1 contract
Sources: Registration and Shareholders Rights Agreement (Aps Healthcare Inc)
Demand Registration. (i) Any Holder that holds At any Registrable Securities time after the expiration of the Lock-Up Period, any Holder(s) shall have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 Holder(s) intend to include in such Demand RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for unless the Registrable Securities having of the Initiating Holder(s) and their respective Affiliates to be included therein have an aggregate value of less than $30 million value, based on the VWAP of such Registrable Securities as of the date of the Demand Notice, of at least $50 million (the “Minimum Amount”).
(ii) Within five thirty Business Days of after the receipt of the Demand NoticeNotice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, Triangle shall give written notice of such Demand Notice to all Holders andwithin 45 days thereof), as soon as reasonably practicable thereafter, the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act and remain effective as soon as reasonably practicable after the filing thereof under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle the Company is not obligated hereunder to effect (A) more file any Registration Statement pursuant to a Demand Registration within 90 days after the closing of any Requested Underwritten Offering, unless as a result of Section 2(d), the Requested Underwritten Offering includes less than two Demand Registrations (the “Requested Underwritten Offering Minimum Condition”) the lesser of (i) Registrable Securities of the Initiating Holder(s) having an aggregate value, based on the VWAP as of the effective date of the related Registration Statement, of $50 million, and (ii) two-thirds of the number of Registrable Securities the Initiating Holder(s) set forth in any 12 month periodthe applicable Underwritten Offering Notice, or (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) effect a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice Initiating Holder(s) shall have become effective under the 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 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(s) shall be entitled to an additional Demand Registration in lieu thereof.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (A Holder may withdraw all or any amendment thereto) for portion of its Registrable Securities included in a period Demand Registration from such Demand Registration at any time prior to the effectiveness of up the applicable Registration Statement. Upon receipt of a notice from an Initiating Holder that such Initiating Holder is withdrawing an amount of its Registrable Shares such that the remaining amount of Registrable Shares to 60 days, if (A) the Board determines that a postponement is be included in the best interest Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rightsRegistration Statement.
(v) Triangle The Company may include in any such Demand Registration other Triangle Company Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed subject to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other PersonSection 2(d).
(vi) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible to register for resale A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities on Form S-3, in which case such accordance with the intended method or methods of disposition specified in the Demand Registration shall be effected on another appropriate form for such purpose pursuant to Notice; provided that if the Securities Act) and if Triangle Company 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 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 Trianglethe Company); provided, however, that if . If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, 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 states jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
(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 shall the Company be required to 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 the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Brigham Minerals, Inc.)
Demand Registration. In addition to the registration obligations of the Company set forth in Section 2.2 herein, the following provisions shall apply:
(ia) Any Holder Subject to Section 2.3(i), upon the written request of the Majority Holders, requesting that holds any the Company effect the registration under the Securities Act of all or part of such Designated Holders’ Registrable Securities shall have and specifying the option and right, exercisable by delivering a written notice to Triangle intended method of disposition thereof (a the “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall Company will promptly give written notice of such Demand Notice requested registration to all Holders andDesignated Holders, and thereupon the Company will use its reasonable best efforts to file with the SEC as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of following the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included (but in such Demand Registration as promptly as practicable as directed by no event later than the Initiating Holder in accordance with the terms and conditions of date that is 90 days after the Demand Notice and Notice) a Registration Statement. The Company shall use all commercially its reasonable best efforts to cause such Registration Statement to become be declared effective under by the Securities Act and remain effective under SEC within 90 days after the Securities Act until all initial filing of the Registration Statement. The Company shall include in such Registration Statement:
(i) the Registrable Securities covered which the Company has been so requested to be registered by such Registration Statement Designated Holders for disposition in accordance with the intended method of disposition stated in such request;
(ii) all other Registrable Securities the holders of which shall have been sold made a written request to the Company for registration thereof within 30 days after the giving of such written notice by the Company (which request shall specify the “Effectiveness Period”intended method of disposition of such Registrable Securities).; and
(iii) Subject 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 other limitations extent 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, that, the provisions of this Section 2.3 shall not require the Company to effect more than two registrations of Registrable Securities.
(b) Notwithstanding anything to the contrary contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle Company shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period pursuant to this Section 2.3 within 180 days following the effective date of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (filed by the Company in accordance with Sections 2.2, 2.3 or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or 2.4 for the account of any other Person; provided that another Designated Holder of Registrable Securities if the managing underwriter, if any, for Designated Holders were afforded the Underwritten Offering determines that the type or number of Triangle Securities proposed opportunity to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of include the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personregistration.
(vic) Subject to the limitations contained in The registrations under this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 shall be effected pursuant to an Automatic Shelf Registration Statement, which Section 2.3 shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to Triangle); provided, however, that if at any time a an appropriate Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of permits the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 disposition of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofspecified by the Majority Holders in their request for registration. The Company agrees to include in any such Registration Statement all information which Designated Holders of Registrable Securities being registered shall reasonably request to effect the registration.
(d) A registration requested pursuant to this Section 2.3 shall not be deemed to have been effected (i) unless a Registration Statement with respect thereto has become effective; provided, that a Registration Statement which does not become effective 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 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) if, after it has become effective, 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 Statement’s effectiveness, or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration 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 Registration Statement.
(e) Intentionally Omitted.
(f) If a requested registration pursuant to this Section 2.3 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (with a copy to each Designated Holder of Registrable Securities requesting registration) that, in its opinion, 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 within a price range reasonably acceptable to the Company and to the holders of a majority (by number of shares) of the Registrable Securities requested to be included in such Registration Statement, the Company will include in such registration, to the extent of the number which the Company is so advised can be sold in such offering, (i) first, the Registrable Securities which have been requested to be included in such registration by the Designated Holders pursuant to this Agreement (pro rata based on the amount of Registrable Securities sought to be registered by such Persons), (ii) second, provided that no securities sought to be included by the Designated Holders have been excluded from such registration, the securities of other Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company (pro rata based on the amount of securities sought to be registered by such Persons) and (iii) third, securities the Company proposes to register.
(g) The Company shall use its reasonable best efforts to keep any Registration Statement filed pursuant to this Section 2.3 continuously effective (i) for a period of two years after the Registration Statement first becomes effective, plus the number of days during which such Registration Statement was not effective or usable pursuant to Sections 2.6(e) or 2.6(i); or (ii) if such Registration Statement related to an underwritten offering, for such period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer. In the event the Company shall give any notice pursuant to Sections 2.6(e) or (i), the additional time period mentioned in Section 2.3(f)(i) during which the Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Sections 2.6(e) or (i) to and including the date when each seller of a Registrable Security covered by the Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Sections 2.6(e) or (i).
(h) The Company shall have the right at any time, to suspend the filing of a Registration Statement under this Section 2.3 or require that the Designated Holders of Registrable Securities suspend further open market offers and sales of Registrable Securities pursuant to a Registration Statement filed hereunder for a period not to exceed an aggregate of 30 days in any six month period or an aggregate of 60 days in any twelve-month period for valid business reasons (not including avoidance of their obligations hereunder) (i) to avoid premature public disclosure of a pending corporate transaction, including pending acquisitions or divestitures of assets, mergers and combinations and similar events; (ii) upon the occurrence of any of the events specified in Section 2.6(e), until the time that the Designated Holders receive copies of a supplement or amendment to the prospectus included in the applicable Registration Statement as contemplated in Section 2.6(e); and (iii) upon the occurrence of any of the events specified in Section 2.6(i), until the time the Company notifies the Designated Holders in writing that such suspension is no longer effective.
(i) The right of Designated Holders to register Registrable Securities pursuant to this Section 2.3 is only exercisable if, prior to the expiration of the Effectiveness Period, the Company becomes ineligible to register the Registrable Securities on the Registration Statement contemplated by Section 2.2 or such Registration Statement otherwise becomes unusable (other than due solely to some act or omission by the Designated Holders electing to have Registrable Securities registered pursuant to such Registration Statement) or ineffective and the Company is not able to correct the misstatements, have the applicable stop order rescinded or otherwise restore the effectiveness of the Registration Statement as contemplated by this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Gendell Jeffrey L Et Al)
Demand Registration. Following request by the Investors, which request shall not be earlier than ten days after the Company is eligible to file a registration statement on Form S-3, the Company will be obligated to file a registration statement on Form S-3 covering the public sale of Registrable Securities, and the Company will cause such shares to be registered under the Securities Act in accordance with the following provisions of this Section 2.
(ia) Any Holder that holds The Company shall use its reasonable best efforts to qualify and remain qualified to register securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3, the holders of Registrable Securities shall have the option and right, exercisable by delivering a written notice right to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms request an unlimited number of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale registrations of the number and type of their Registrable Securities on the terms and conditions specified in the Demand Notice in accordance Form S-3 or any similar short-form registration (each a “Short-Form Registration” and, together with the intended timing and method or methods of distribution thereof specified in the Demand Noticeeach Long-Form Registration, which may include sales on a delayed or continuous basis pursuant to Rule 415 (a “Demand Registration”); provided, however, that the Company shall in no event be required to effect more than two Demand Registrations in any 12-month period. The Demand Notice must set forth Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities that requested to be registered. Upon receipt of any such request, the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, Company shall promptly (but in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less later than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii10 days following receipt thereof) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written deliver notice of such Demand Notice request to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations other holders of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that who shall then have 10 days from the Holders shall date such notice is given to notify the Company in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) their desire to be included in such Demand registration. The Company shall cause a Registration as promptly as practicable as directed by Statement on Form S-3 (or any successor form) to be filed within 45 days after the Initiating Holder in accordance with date on which the terms initial request is given and conditions of the Demand Notice and shall use all commercially its reasonable best efforts to cause such Registration Statement to become be declared effective under by the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”)Commission as soon as practicable thereafter.
(iiib) Subject to the other limitations contained in this Agreement, Triangle is The Company shall not be obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant within 30 days after the effective date of a previous Demand Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to a Demand Notice if a Registration Statement covering register Registrable Securities and sold all of the Registrable Securities held by requested to be included therein. The Company may postpone for up to 45 days during any period of 12 consecutive months the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales filing or effectiveness 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period Demand Registration, or otherwise suspend the registration rights of up the Investors hereunder and/or require the Investors to 60 days, suspend use of any resale prospectus included in any registration statement if (A) the Company’s Board determines in its reasonable good faith judgment that such Demand Registration, registration rights or use of any such prospectus would (i) materially interfere with a postponement is in the best interest of Triangle and its stockholders generally due to a pending significant acquisition, corporate organization or other similar transaction involving Triangle, the Company; (Bii) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require premature disclosure of material information that Triangle the Company has a bona fide business purpose for preserving as confidential confidential; or (any such period, a “Blackout Period”)iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, howeverthat in such event the holders of a majority of the Registrable Securities initiating such Demand Registration shall be entitled to withdraw such request and, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month periodif such request is withdrawn, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle such Demand Registration shall not engage in any transaction involving count as one of the offer, issuance, sale, or purchase of Triangle Securities (whether for permitted Demand Registrations hereunder and the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or Company shall pay all registration expenses in connection with the conversion or exercise such registration. The Company may delay a Demand Registration hereunder only once in any period of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights12 consecutive months.
(vc) Triangle may If the holders of the Registrable Securities initially requesting a Demand Registration elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), and the Company shall include such information in its notice to the other holders of Registrable Securities. If a requested Demand Registration involves an underwritten offering, the holders of a majority of the Registrable Securities initially requesting such Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld or delayed.
(d) Except for DNI Registrable Securities, the Company shall not include in any such Demand Registration other Triangle any securities which are not Registrable Securities for sale for its own account without the prior written consent of the holders of a majority of the Registrable Securities included in such registration, which consent shall not be unreasonably withheld or for the account of any other Person; provided that if delayed. If a Demand Registration involves an underwritten offering and the managing underwriter, if any, for underwriter of the Underwritten Offering determines requested Demand Registration advises the Company and the holders of Registrable Securities in writing that in its opinion the type or number of Triangle Securities shares of Common Stock proposed to be offered included in the Demand Registration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such registration would likely have an adverse effect in any material respect on adversely affect the price, timing or distribution price per share of the Registrable Securities proposed to be included sold in such underwritten offering, the Company shall include in such Demand Registration (i) first, the number of shares of Common Stock that the holders of Registrable Securities and the DNI Holders propose to sell, allocated pro rata among all such holders on the basis of the number of Registrable Securities or DNI Registrable Securities owned by each such holder (on a fully diluted, as converted basis) or in such manner as they may otherwise agree, and (ii) second, the number of shares of Common Stock proposed to be sold included therein by the Holders shall be included in such registration before any Triangle Securities proposed other Persons (including shares of Common Stock to be sold for the account of Triangle or any the Company and/or other Person.
(viholders of Common Stock) Subject to allocated among such Persons in such manner as they may agree. If the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, managing underwriter determines that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of less than all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or cause proposed to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may sold can 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, Triangle would become subject to general service of process or to taxation or qualification to do business included in such jurisdiction solely as a result of registration and (2) such formsoffering, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list then the Registrable Securities subject to that are included in such Demand Registration offering shall be allocated pro rata among the respective holders thereof 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 basis of the Holders to enable the Holders to consummate a public sale number of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofowned by each such holder.
Appears in 1 contract
Demand Registration. (ia) Any Holder that holds At any Registrable Securities time after the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012, if the Company shall have the option and right, exercisable by delivering receive a written request from Subscribers holding not less than twenty-five percent (25%) of the Stated Value of the Preferred Stock then outstanding that the Company file a Registration Statement under the Securities Act covering the Registrable Securities, then the Company shall, within ten (10) days of the receipt of such request, give written notice of such request to Triangle (a “Demand Notice,” all Subscribers, and the Holder that delivers such a Demand Notice, the “Initiating Holder”), use commercially reasonable efforts to require Triangle 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 covering the offering and sale resale of all of the number and type of Registrable Securities on requested to be registered by 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 Subscribers for an offering to be made 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary else contained herein, in no event the Company shall Triangle not be required to effectuate a effect such Demand Registration for Registrable Securities having (i) if such Demand Registration is received after the third (3rd) anniversary of the Final Closing of this Offering or (ii) if the Company is engaged in or proposes to engage in an aggregate value underwritten public offering of less than $its securities during the period starting with the date that is 30 million based on days prior to the VWAP of such Registrable Securities as Company’s good faith estimate of the date of filing of, and ending on the Demand Noticedate that is 180 days following the effective date of the registration statement pertaining to such underwritten public offering.
(iib) Within five Business Days Until the third anniversary of the receipt of Final Closing, the Demand Notice, Triangle Company shall give written notice of such Demand Notice be required to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement registering all of the Registrable Securities as soon as commercially possible if the Company shall fail for any reason to satisfy the current public information requirement under Rule 144(c).
(c) Upon receipt of a Demand Registration or if the Company satisfies the conditions set forth under Section 5.2(b) above, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that the Holders shall in writing request (such request are not then registered on an effective Registration Statement for an offering to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle made on a continuous basis pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Rule 415. Each Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated filed hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-1 or S-3 (except if Triangle the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration registration shall be effected on another appropriate such form for such purpose pursuant to in accordance herewith). In the Securities Act) and if Triangle becomes, and is at event the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling amount of Registrable Securities shall which may be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under included in the Securities Act (if available to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice limited due to Triangle that it intends SEC Guidance (provided that, the Company shall use diligent efforts to effect an offering advocate with the Commission Staff for the registration of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 SEC Guidance, including without limitation, the SEC’s interpretive responses regarding Delayed or Continuous Offering and method Sale of Securities no. 612.09) the Company shall use its best efforts to register such maximum portion of the Registrable Securities as permitted by SEC Guidance. Subject to the terms of this Agreement, the Company shall use its best efforts to cause a Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event prior to the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until the earlier of (i) all Registrable Securities covered by such Registration Statement have been sold, (ii) may be sold without volume or methods manner-of-sale restrictions pursuant to Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, (iii) not required to be registered in reliance upon the exemption in Section 4(1) under the Securities Act, in either case as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Subscribers or (iv) the third year anniversary of distribution thereofthe Initial Closing (the “Effectiveness Period”).
Appears in 1 contract
Sources: Subscription Agreement (Intellicell Biosciences, Inc.)
Demand Registration. At any time ninety (i90) Any Holder that holds any days after the closing of the Offering, the holders of a majority of the Registrable Securities shall have then outstanding may request registration under the option Securities Act of all of the Registrable Securities that are not then registered on an existing and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a effective Registration Statement registering the for an 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 to be made on a delayed or continuous basis pursuant to Rule 415 415, on Form S-1 or any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the resale by the Holders of all of the Registrable Securities (each, a “Demand Registration”). The Demand Notice must set forth Upon receipt of such request, the number Company shall promptly (but in no event later than twenty (20) calendar days after receipt of such request) deliver notice of such request to all other holders of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event who shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of then have ten (10 calendar days from the date of such notice is given to notify the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall Company in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) their desire to be included in such Demand Registration as promptly as practicable as directed by registration. The Company shall (i) use its commercially reasonable efforts to make the Initiating Holder in accordance with the terms and conditions initial filing of the Demand Notice and Registration Statement within ninety (90) calendar days after the date on which the initial request is given, (ii) use all its commercially reasonable efforts to cause such Registration Statement to become be declared effective by the Commission as soon as practicable thereafter, and (iii) use its commercially reasonable efforts to keep such Registration Statement effective until the date on which all securities under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold ceased to be Registrable Securities (the “Effectiveness Period”).
. The Registration Statement filed hereunder shall contain (iiiexcept if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) Subject that “Plan of Distribution” in substantially the form attached hereto as Annex A. Notwithstanding the foregoing, in the event that the staff (the “Staff”) of the Commission should limit the number of Registrable Securities that may be sold pursuant to the other limitations contained in this AgreementRegistration Statement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a the Company may remove from the Registration Statement covering such number of Registrable Securities as specified by the Commission on behalf of all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type holders of Registrable Securities on a pro rata basis among the terms and conditions specified in holders thereof. In such event, the Demand Notice in accordance with Company shall give the intended timing and method or methods Purchasers prompt notice of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision number of this Section 2(a), Triangle Registrable Securities excluded therefrom. The Company shall not be required to effect a registration or file a Registration Statement pursuant to Form S-1 more than two (or any amendment thereto2) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether times for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling holders 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereofgroup.
Appears in 1 contract
Sources: Registration Rights Agreement (Valeritas Holdings Inc.)
Demand Registration. Upon the earlier of (i) Any Holder that holds any the fifth ------------------- year anniversary of the Issue Date, or (ii) 180 days following the Initial Public Offering of the Company Holders owning, individually or in the aggregate, at least the Requisite Equity Interests may, from time to time, make a written request to the Company to effect up to two registrations (each, a "Demand ------ Registration") under the Securities Act of their Registrable Securities. Within ------------ 20 days after the receipt of such written request for a Demand Registration, the Company shall (i) notify the Holders of all Registrable Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand NoticeRegistration has been requested, the “Initiating Holder”)(ii) prepare, to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice SEC and use all commercially reasonable its best efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act until all within 150 days of such demand a Registration Statement with respect to such Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
and (iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total keep such registration statement continuously effective for such period of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering time as all of the Registrable Securities held by the Holders providing included in such Demand Notice registration statement shall have become effective under been sold thereunder (the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of "Effectiveness Period"). Any such request will specify -------------------- the number and type of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof. Within 30 days after receipt by any Holder of Registrable Securities of such notice from the Company, such Holder may request in writing that such Holder=s Registrable Securities be included in such Registration Statement and the Company shall include in such Registration Statement the Registrable Securities of any such Holder requested to be so included (the "Included Securities"). Each such request by such other Holders ------------------- shall specify the number of Included Securities proposed to be sold and the intended method of disposition thereof. Subject to Sections 2.1(b) and 2.1(f) hereof, the Company shall be required to effect a Demand Registration of Registrable Securities pursuant to this Section 2.1(a) up to a maximum of two occasions. If at the time of receipt of such request the Company is not a Subchapter C corporation, the Equity Holders and the Company shall take such steps as shall be necessary for the Company to reorganize as a Subchapter C corporation in order to permit Holders who have exercised their registration rights pursuant to this Section 2.1 to have registered for resale Shares. The terms of any such Reorganization shall be structured so as to provide the Holders with such number of Shares as results in the Holders holding an equivalent percentage of Capital Stock and Voting Stock in the Company after the Reorganization as they held immediately prior to the Reorganization to this Agreement. If such demand occurs during the "lock up" period (not to exceed 180 days) imposed on the terms and conditions specified Company pursuant to or in connection with any underwriting or purchase agreement relating to an underwritten Rule 144A or registered public offering of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock, the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle Company shall not be required to effect a registration or so notify Holders of Registrable Securities and file a such Demand Registration Statement (prior to the end of such "lock up" or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such "black out" period, a “Blackout Period”); provided, however, that in which event the Company will use its best efforts to cause such Demand Registration statement to become effective no later than the later of (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 150 days in any 12 month period, after such demand or (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) 90 days after the end of such "lock up" or any Suspension Period, Triangle shall not engage in any transaction involving "black out" period. In the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account event of any "lock up" period under any underwriting or other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offeringpurchase agreement, the Registrable Securities to be sold by Company shall so notify the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling holders 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeSecurities.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Common Stock Registration Rights Agreement (Nassau Broadcasting Corp)
Demand Registration. (ia) Any Holder that holds any Registrable Securities shall have Subject to the option and rightprovisions of this Section 5.2(a), exercisable by delivering a upon the written notice to Triangle request (a “Demand Notice,” and the ”) of a Holder that delivers such a Demand Notice, (the “Initiating HolderDemand Party”) requesting that the Company effect the registration under the Securities Act of all or part of such Demand Party’s Registrable Securities, which Registrable Securities will be offered for sale after the Restricted Period Termination Date, and specifying the amount and intended methods of disposition thereof, including pursuant to a shelf registration statement utilizing Rule 415 of the Securities Act (or its successor provision) (a “Shelf Registration”), which Shelf Registration shall only be permitted hereunder if the Company is then eligible to require Triangle touse Form S-3, pursuant thereupon the Company will promptly give written notice of such requested registration 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 each of the number other Holders and type of Registrable Securities on the terms thereupon will, as expeditiously as reasonably practicable (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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in any event no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less later than $30 million based on the VWAP of such Registrable Securities as of 45 days after the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request and use its commercially reasonable efforts to cause to be given to Triangle within three days of receipt of such notice of declared effective under the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration Securities Act as promptly as practicable as directed by practical a registration statement to effect the Initiating Holder in accordance with registration under the terms and conditions Securities Act of the following; provided that, notwithstanding the foregoing: (x) to the extent a Demand Notice and is delivered not less than 45 days prior to the Restricted Period Termination Date requesting a Shelf Registration, the Company shall use all its commercially reasonable efforts to cause such Registration Statement registration statement to become effective no later than the first (1st) Business Day after the Restricted Period Termination Date, and (y) under no circumstances under this Section 5.2(a) (including the foregoing clause (x)) shall the Company be required to file any registration statement prior to the date that is 45 days prior to the Restricted Period Termination Date:
(i) such Registrable Securities which the Company has been so requested to register by the Demand Party under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).Demand Notice; and
(iiiii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held of Holders which the Company has been requested to register by written request to the Company by the Holders providing within ten days after the giving of such Demand Notice written notice by the Company to the Holders (which request shall have become effective under specify the Securities Act amount and remains effective under intended methods of disposition of such securities); all to the Securities Act and is sufficient extent necessary to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice disposition (in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice.
(ivas aforesaid) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed and such other securities so to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personregistered.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Warrantholders Agreement (Global Eagle Entertainment Inc.)
Demand Registration. (ia) Any Holder Registration on Request of Sodexho. Upon the written request of Sodexho that holds any Registrable SMS effect the registration under the Securities shall have the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 Act of Registrable Securities on having a fair market value of not less than $50 million and specifying the terms and conditions specified in intended method of disposition thereof, SMS will thereupon will use its best efforts to effect, as promptly as practicable, the Demand Notice registration under the Securities Act of such Registrable Securities to the extent necessary to permit the disposition (in accordance with the intended timing and method or methods for such disposal) of distribution thereof specified in the Demand Notice, which may include sales on such Registrable Securities; provided that:
(i) SMS shall not be obligated to file a delayed or continuous basis registration statement relating to a registration request pursuant to Rule 415 this Section 4.01 at any time during the one-year period immediately following the effective date of another registration statement filed pursuant to this Section 4.01(a); and
(ii) with respect to any registration statement filed or to be filed pursuant to this Section 4.01 and not yet effective, if the Board (which for this purpose shall not include the Sodexho Designees) shall determine, in its good faith judgment, that to permit such registration statement to become effective (or, if no registration statement has yet been filed, to file such a registration statement) would be significantly disadvantageous (a “Demand Registration”). The Demand Notice must set forth "DISADVANTAGEOUS CONDITION") to SMS or its stockholders in light of the number existence, or in anticipation, of Registrable Securities that any acquisition or financing activity involving SMS or the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to unavailability for reasons beyond SMS's control of any required financial statements, SMS may, for the contrary herein, shortest possible period (but in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of exceed 180 days from the date of the Demand Notice.
Board's determination), cause such registration statement to be withdrawn or, if no registration statement has yet been filed, to delay the filing of such registration statement. Unless Sodexho shall consent in writing, no other party, including SMS, shall be permitted to offer securities under any registration pursuant to this Section 4.01(a). Sodexho may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability (except as set forth in Section 4.01(c)) by providing a written notice to SMS revoking such request. If SMS determines to take any action pursuant to clause (ii) Within five Business Days above, SMS shall deliver a notice to Sodexho to such effect, and furnish to Sodexho a certified copy of the receipt resolution of the Demand NoticeBoard authorizing such action, Triangle together with a general description of the applicable Disadvantageous Condition. If any Disadvantageous Condition shall give written notice of cease to exist SMS shall promptly notify Sodexho to such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, effect. SMS shall, subject if any registration statement shall have been withdrawn, at the end of the period (not to the limitations of this Section 2(a)exceed 180 days) referred to in clause (ii) above (or, if earlier, at such time as it in good ▇▇▇▇▇ ▇▇▇▇▇ appropriate) file a Registration Statement new registration statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act until all Registrable Securities were covered by such Registration Statement have been sold (withdrawn registration statement, and the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total effectiveness of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form maintained for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable so that the period of effectiveness of such offering to take place.
(vii) Without limiting Section 3new registration statement, in connection when aggregated with any Demand Registration pursuant to and in accordance with this Section 2(a)the period during which such withdrawn registration statement was effective, Triangle shall, (A) promptly prepare and file or cause to shall be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, time 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 otherwise required in any jurisdiction where, as a result thereof, Triangle 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 thereofthis Agreement.
Appears in 1 contract
Sources: Stockholder Agreement (Sodexho Marriott Services Inc)
Demand Registration. (ia) Any Holder that holds any Registrable Securities Subject to Section 2.1(b) below, the Shareholder shall have the option and right, exercisable on not more than one (1) occasion within three (3) years of the Effective Time of the Merger to require the Company to file a registration statement under the Securities Act covering all or part of any Holder's or Holders' Registrable Securities by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant request therefor 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 Company specifying the number and type of Registrable Securities on to be included in such registration, and the terms intended method of distribution thereof (the "Demand Registration Request"). Subject to Sections 2.3, 2.4, 2.5 and conditions specified 2.7, the Company shall use its best efforts to effect the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register in the Demand Notice Registration Request, for disposition in accordance with the intended timing and method or methods of distribution thereof specified disposition stated in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 Registration Request (a “"Demand Registration”"). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends Company shall not be obligated to include in such effect more than one (1) Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing A registration request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant will not be deemed to a Demand Notice if a Registration Statement covering all of have been effected unless the Registrable Securities held by the Holders providing such Demand Notice registration statement with respect thereto shall have become been declared effective under and remained effective for the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales period required by Section 2.4(a) 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 Noticethis Agreement.
(ivb) Notwithstanding The demand registration rights granted the Shareholder in Section 2.1(a) are subject to the following additional limitations: (i) the Company shall not be obligated to file a registration statement relating to any other provision Demand Registration Request made more than three (3) years after the Effective Time of this Section 2(a), Triangle the Merger; (ii) the Company shall not be required to effect file a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due statement pursuant to a pending transaction involving Triangle, (B) Demand Registration Request on Form S-1 at any time when registration on Form S-3 is available for use by the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or Holders in connection with the conversion or exercise of outstanding securities, including the Convertible Note, such registration; and (iii) during if the Board of Directors of the Company, in its good faith judgment, reasonably determines that any Blackout Period contemplated by Section 2(a)(iv)(B) registration of Registrable Securities should not be made or continued due to a valid need not to disclose confidential information or because it would interfere with any corporate reorganization or material financing, acquisition, merger or other transaction involving the Company (C) or any Suspension Periodcollectively, Triangle shall not file a "Valid Business Reason"), the Company may postpone filing a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include relating to a Demand Registration Request and, in case any such Demand Registration other Triangle Securities registration statement has been filed, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement, in each case until such Valid Business Reason no longer exists. The Company shall give written notice to the Shareholder of its determination to postpone or withdraw a registration statement for sale a Valid Business Reason, together with such disclosure to the Shareholder of the nature of the Valid Business Reason as business necessity and the requirements of applicable law will allow, and of the fact that the Valid Business Reason for its own account such postponement or for withdrawal no longer exists, in each case promptly after the account occurrence thereof. If the Company shall give any notice of postponement or withdrawal of any registration statement, the Company shall not, during the period of postponement or withdrawal, register any capital stock other Person; provided than pursuant to a registration statement on Form S-4 or Form S-8. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that if the managing underwriterCompany has determined to withdraw any registration statement pursuant to clause (iii) above, each Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement and, if anyso directed by the Company, for will deliver to the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered Company all copies, other than permanent file copies, then in such offering would likely have an adverse effect in any material respect on the price, timing or distribution Holder's possession of the prospectus covering such Registrable Securities proposed to be included that was in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt of such notice. If the Company shall give any notice of withdrawal of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal no longer exists, file a new registration statement covering the Registrable Securities that were covered by the withdrawn registration statement. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section 2.1(a) (whether pursuant to clause (iii) above or as a result of any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court), the Company shall not be considered to have effected a registration for the purposes of this Section 2.1 and such withdraws or terminated registration shall not constitute a Demand Notice, Registration unless and until the Company shall have filed a WKSInew registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and remained effective for the period required by Section 2.4(a) of this Agreement. If the Company shall give any notice of postponement of a registration statement, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant Company shall, at such time as the Valid Business Reason that caused such postponement no longer exists, use its best efforts to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form effect the registration under the Securities Act (if available to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a)2.1.
(c) Subject to Section 2.3, Triangle shall, (A) promptly prepare and file or cause the Company may elect 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required include in any jurisdiction whereregistration statement and offering made pursuant to this Section 2.1, authorized but unissued shares of Common Stock or shares of Common Stock held by the Company as a result thereof, Triangle 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 treasury shares.
(2d) 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 If any Demand Registration on involves an underwritten offering, the Trading Market Shareholder shall have the right to select the investment bankers and (B) do any and all other acts and things that may be reasonably necessary underwriters or appropriate or reasonably requested by managing underwriters to administer the Holders to enable the Holders to consummate a public sale offering of such Registrable Securities in accordance with Securities, provided such investment bankers and underwriters shall be reasonably acceptable to the intended timing and method or methods of distribution thereofCompany.
Appears in 1 contract
Demand Registration. Upon written notice from a Stockholder(s) such Stockholder(s) shall have the right, at any time commencing six (6) months after the date on which the registration statement containing the final prospectus relating to SFH’s initial public offering is declared effective, to request registration, by written notice to SFH, of some or all of the Common Stock (the “Registrable Shares”). In no event shall SFH be given or required to honor a registration request on more than one occasion from the Stockholders as a group. Upon receiving a registration request, SFH shall:
(i) Any Holder that holds any notify the other Stockholders and allow the other Stockholders to include their Registrable Securities shall have Shares in the option and rightregistration;
(ii) use all reasonable efforts to effect, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Noticeas soon as practicable, the “Initiating Holder”), registration of an offering under the 1933 Act of all Registrable Shares that the Stockholders request to require Triangle to, be registered within thirty (30) days of the receipt of the notice(s) pursuant to the terms of and subject to the limitations contained in this Agreement, Section 1(c);
(iii) prepare and file with the Commission SEC 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 in accordance registration statement 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 respect to Rule 415 (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. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice Shares and use all commercially reasonable efforts to cause such Registration Statement registration statement to become effective under and, upon the Securities Act and remain request of any Stockholder selling Registrable Shares, keep such registration statement effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 daysninety (90) days or, if (A) earlier, until the Board determines that a postponement is distribution contemplated in the best interest of Triangle registration statement has been completed;
(iv) prepare and its stockholders generally due file with the SEC such amendments and supplements to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable statement and the prospectus used in connection with such registration statement as may be reasonably necessary to comply with applicable the provisions of the 1933 Act with respect to the disposition of all securities laws or (C) the Board determines covered by such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.statement;
(v) Triangle may include in any furnish to each Stockholder such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed copies of a prospectus, including a prospectus subject to be offered completion, in such offering would likely have an adverse effect in any material respect on conformity with the price, timing or distribution requirements of the 1933 Act, and such other documents as any Stockholder may reasonably request in order to facilitate the lawful disposition of Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold Shares owned by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.it;
(vi) Subject if necessary, register and qualify or file any notices relating to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case securities covered by such Demand Registration shall be effected on another appropriate form for registration statement under such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 blue sky laws of such states as the Holders shall be reasonably request; providedrequested by any Stockholder, however, provided that no such qualification SFH shall not be required in any jurisdiction where, connection therewith or as a result thereof, Triangle would become subject condition thereto (A) to qualify to do business or to file a general consent to service of process in any such states or (B) to taxation qualify as a dealer in securities under the securities or qualification blue sky laws of any state;
(vii) notify the Stockholders at any time when a prospectus relating to do business in such jurisdiction solely the offering is required to be delivered under the 1933 Act or the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes 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 in the light of the circumstances then existing;
(viii) cause all such Registrable Shares registered pursuant hereto to be listed on each securities exchange, if any, on which Registrable Shares issued by SFH are then listed; and
(ix) provide a transfer agent and registrar for all Registrable Share to be registered hereunder and a CUSIP number for such Registrable Shares in each case not later than the effective date of such registration statement. The Stockholder’s participation in any such demand registration shall not require that he pay any portion of the registration expenses incurred by SFH but such Stockholder shall pay the proportional amount of all state and federal registration and (2) filing fees and underwriting discounts and commissions applicable to Registrable Shares sold by it and fees and disbursements of any legal counsel or accountants retained by 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 thereofStockholder.
Appears in 1 contract
Sources: Registration Rights Agreement (Sinofresh Healthcare Inc)
Demand Registration. (i) Any Holder that holds If the Company (i) is in violation of its obligation to file a Shelf Registration Statement pursuant to Section 2(a) or (ii) following the effectiveness of the Shelf Registration Statement contemplated by Section 2(a), thereafter ceases to have an effective Shelf Registration Statement during the Shelf Period (other than during any Registrable Securities shall have Suspension Period), subject to the option terms and rightconditions of this Agreement (including Section 2(b)(iii)), exercisable by delivering a upon written notice to Triangle the Company (a “Demand Notice,” and the Request”) delivered by a Qualified Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 holds at least 5% of the number and type outstanding Equity Securities, calculated at the time of Registrable Securities on such demand, requesting that the terms and conditions specified in Company effect 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 registration (a “Demand Registration”) under the Securities Act of any or all of the Registrable Securities beneficially owned by such Qualified Holder(s). The , the Company shall give a notice of the receipt of such Demand Notice must set forth the number Request (a “Demand Notice”) to all other Holders of Registrable Securities that (which notice shall state the Initiating Holder intends material terms of such proposed Demand Registration, to include the extent known). Such Demand Notice shall be given not more than ten (10) Business Days and not less than five (5) Business Days, in each case prior to the expected date of the public filing of the registration statement (the “Demand Registration Statement”) for such Demand Registration. Notwithstanding anything Subject to the contrary hereinprovisions of Section 2(a)(iii) and Section 2(e) below, in no event the Company shall Triangle be required to effectuate a file the Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice Statement and use its commercially reasonable efforts to all Holders andeffect, as soon as reasonably practicable thereafterpracticable, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective registration under the Securities Act and remain effective under the Securities Act until applicable state securities laws and include in such Demand Registration Statement all Registrable Securities covered by such Registration Statement have been sold that are New Common Shares with respect to which the Company has received written requests for inclusion therein within five (5) Business Days after the “Effectiveness Period”).
later of (iiii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Company delivering the Demand Notice if a Registration Statement covering all of the Registrable Securities held by the to Holders providing such Demand Notice shall have become effective under the 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 on and (ii) five (5) Business Days prior to the terms and conditions specified in actual public filing of the Demand Notice Registration Statement. Nothing in accordance with this Section 2(b) shall relieve the intended timing and method or methods Company of distribution thereof specified in the Demand Notice.
(iv) Notwithstanding any other provision of this its obligations under Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Demand Registration. (a) Following the Effectiveness Date, any Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”) may request that the Company effect the registration under the Securities Act of all or any portion of the Requesting Shareholder’s Registrable Securities and specify the intended method of disposition thereof. The Company shall as promptly as reasonably practicable following the date of receipt by the Company of such request give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) and, in any event, no later than five Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to any other Shareholders and thereupon shall use all commercially reasonable efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) Any Holder that holds any subject to the restrictions set forth in Section 2.01(e), all Registrable Securities shall have for which the option Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e) and right2.02, exercisable by delivering a written notice to Triangle all other Registrable Securities that any Shareholders (a “Demand Notice,” and all such Shareholders, together with the Holder that delivers such a Demand NoticeRequesting Shareholder, the “Initiating HolderRegistering Shareholders”), ) have requested the Company to require Triangle to, register pursuant to Section 2.02, by request received by the terms Company within two Business Days after such Shareholders receive the Company’s notice of and subject the Demand Registration, all to the limitations contained in this Agreement, prepare and file with extent necessary to permit 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 disposition (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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(iiaforesaid) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities so to be registered, provided that the Holders Company shall in writing request (such request not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be given to Triangle within three days of receipt of such notice received from the sale of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) Registrable Securities requested to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions equals or exceeds $50,000,000 or such lesser amount that constitutes all of the Requesting Shareholder’s Registrable Securities. In no event shall the Company be required to effect more than one Demand Notice Registration or Underwritten Takedown hereunder within any ninety-day period or four or more Demand Registrations and use Underwritten Takedowns, in the aggregate, in any period of twelve consecutive months.
(b) Promptly after the expiration of the two-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all commercially reasonable efforts Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to cause be included therein. 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 Registering Shareholders, by providing a notice to the Company revoking such request. Notwithstanding clause (d) 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 (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration Statement 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 Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (A) has become effective under the Securities Act and remain (B) has remained effective under the Securities Act until for a period of at least 30 days (or such shorter period in which all Registrable Securities covered by of the Registering Shareholders included in such Registration Statement registration have actually been sold (the “Effectiveness Period”thereunder).
(iii) Subject , provided that a Demand Registration shall not be deemed to the other limitations contained in this Agreementhave occurred if, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month periodafter such registration statement becomes effective, (B1) more than a total such registration statement is interfered with by any stop order, injunction or other order or requirement of five Demand Registrations pursuant to this Agreement the SEC or other governmental agency or court and (C2) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all less than 75% of the Registrable Securities held by included in such registration statement have been sold thereunder.
(e) If a Demand Registration involves a Public Offering and the Holders providing such Demand Notice shall have become effective under managing underwriter advises the Securities Act Company and remains effective under the Securities Act and is sufficient to permit offers and sales of Requesting Shareholder that, in its view, the number and type of shares 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed requested to be included in such registration exceeds the largest number of shares 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 shall include in such registration up to the Maximum Offering Size all Registrable Securities requested to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold by all Registering Shareholders (allocated, if necessary for the account offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of Triangle or any other Personthe relative number of Registrable Securities held by each such Shareholder).
(vif) Subject Upon notice to the limitations contained in this AgreementRequesting Shareholder, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose Company may postpone effecting a registration pursuant to this Section 2.01 for a reasonable time specified in the Securities Act) and if Triangle becomesnotice but not exceeding, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for together with any offering and selling of Registrable Securities shall be effected suspension pursuant to Section 2.03(c) hereof, 60 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Board determines in good faith that: (i) upon the advice of an Automatic Shelf Registration Statementinvestment bank, which shall be on Form S-3 or any equivalent or successor form under effecting the Securities Act (if available to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective registration could materially and a Holder provides written notice to Triangle that it intends to effect adversely affect an offering of all or part securities of the Registrable Securities included on Company the preparation of which had then been commenced, (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such Registration Statementnotice would not be in the best interests of the Company or (iii) effecting the registration would impede, Triangle will amend delay or supplement such Registration Statement as may be necessary in order to enable such offering to take placeinterfere with any pending material acquisition, corporate reorganiation or similar transaction of the Company.
(viig) Without limiting Section 3, In no event shall any securities be registered by the Company (including for the benefit of any other Persons not party to this Agreement) other than Registrable Securities in connection with any a Demand Registration made pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereof2.01.
Appears in 1 contract
Demand Registration. (i) Any Holder that holds At any time following the 20th day following the SEC Compliant Date, Holders collectively holding greater than 25% of the Registrable Securities (or at least $5.0 million of Registrable Securities (the party or the parties making the request shall have be referred to as the option and right"INITIATING HOLDERS"), exercisable by delivering may make a written notice request to Triangle Penn Traffic to register, and Penn Traffic shall register, under the Securities Act (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, other than 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 Form S-4 or S-8 or any successor form thereto), in accordance with the intended timing and method or methods terms of distribution thereof specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 this Agreement (a “"DEMAND Registration"), the number of Registrable Securities stated in such request (a "DEMAND REQUEST") then the Company shall, within ten (10) days after receipt of such Demand Registration”)Request, give written notice of such request ("REQUEST NOTICE") to all Holders. The Each Demand Notice must set forth Request shall (x) specify the number of Registrable Securities that the Initiating Holder intends Holders intend to include in sell or dispose of, (y) state the intended method or methods of sale or disposition of the Registrable Securities and (z) specify the expected price range (net of underwriting discounts and commissions) acceptable to the Requesting Holders to be received for such Registrable Securities. Penn Traffic shall not be obligated to effect more than two such Demand Registrations. The Registration Statement when effective (including the documents incorporated therein by reference) shall comply as to form with all applicable requirements of the Securities Act and the Exchange Act and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Following receipt of a request for a Demand Registration. Notwithstanding anything , the Company shall:
(i) cause to be filed, as soon as practicable, but in any event within 60 days of the date of delivery to the contrary hereinCompany of the Demand Request, in no event shall Triangle be required to effectuate a Demand Registration for Statement covering such Registrable Securities having an aggregate value which the Company has been so requested to register by the Initiating Holders and other Holders who request to the Company that their Registrable Securities be registered within 20 days of less than $30 million based on the VWAP mailing of the Request Notice, providing for the registration under the Securities Act of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient extent necessary to permit offers and sales 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 disposition of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofspecified in such Demand Request;
(ii) use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC as soon as practicable thereafter; and
(iii) refrain from filing any other Registration Statements, other than pursuant to a Registration Statement on Form S-4 or S-8 (or similar or successor forms), with respect to any other securities of the Company until such date which is 180 days following effectiveness of the Registration Statement filed in response to the Demand Request.
Appears in 1 contract
Demand Registration. (ia) Any Holder that holds If the Preferred Shares are not redeemed by the Company pursuant to the Articles Supplementary on or before March 15, 2024, at any Registrable Securities shall have the option and righttime after such date, exercisable by delivering Modiv may make a written notice to Triangle demand (such written demand a “Demand Notice,Registration” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms which written demand may be sent via e-mail) for registration of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale all 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 an effective Registration Statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 (a “Demand Registration”)415. The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration. Notwithstanding anything Subject to the contrary hereinprovisions of Section 2(b) hereof, in no event the Company shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less prepare and file with the SEC, as soon thereafter as reasonably practicable, but not more than $30 million based on thirty (30) days after the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the Company’s receipt of the Demand NoticeRegistration, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration registration shall be effected on another appropriate form) in accordance herewith and which Registration Statement shall contain substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B, with such changes mutually agreed upon by the Company and Modiv or its permitted assigns prior to the filing of such Registration Statement. Such Registration Statement shall comply as to form for such purpose in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith. Modiv shall not be required to be named as an “underwriter” in a Registration Statement filed pursuant to this Agreement without Modiv’s prior written consent, unless requested by SEC Guidance. Except as otherwise provided in this Agreement, under no circumstances shall the Securities ActCompany be obligated to effect more than an aggregate of one (1) and if Triangle becomesregistration pursuant to a Demand Registration under this Section 2(a) with respect to any or all Registrable Securities. Subject to the terms of this Agreement, and is at the time Company shall use commercially reasonable efforts to cause a Registration Statement filed pursuant to this Agreement to be declared effective as soon as reasonably practicable after its initial filing. The Company shall promptly notify Modiv by e-mail of its receipt the effectiveness of a Demand Notice, a WKSI, Registration Statement on the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statementsame day that the Company telephonically confirms effectiveness with the SEC, which shall be on Form S-3 the date of effectiveness of such Registration Statement. The Company shall promptly file a final Prospectus with the SEC as required by Rule 424. Notwithstanding anything to the contrary herein, to the extent the Preferred Shares have been redeemed in full by the Company for Redemption Shares, this Section 2(a) shall be inapplicable.
(b) If the Company furnishes Modiv a certificate signed by the Company’s chief executive officer stating that in the reasonable good faith judgment of the board of directors of the Company filing a Registration Statement pursuant to this Agreement would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or any equivalent other similar transaction involving the Company; or successor form under (ii) require premature disclosure of material information that the Securities Act Company has a bona fide business purpose for preserving as confidential and the Company’s board of directors determines as a result that it is necessary to defer the filing of such Registration Statement at such time, then the Company shall promptly notify Modiv of such determination. In such event, the Company shall have the right to defer such filing for a period of not more than sixty (if available to Triangle)60) days; provided, however, that the Company shall not defer its obligation in this manner more than one (1) time in any 12-month period; provided further, that in such event, Modiv shall be entitled to withdraw its Demand Registration request and, if at such Demand Registration request is so withdrawn, such Demand Registration shall not count as a permitted Demand Registration hereunder and the Company shall pay all registration expenses in connection with such registration.
(c) Notwithstanding the registration obligations set forth in Section 2(a), if the SEC or any time SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement on Form S-3 is effective and as a Holder provides written notice to Triangle that it intends to effect an offering secondary offering, the number of all or part of the Registrable Securities included to be registered on such Registration StatementStatement will be reduced as required by the SEC. In such case, Triangle will amend or supplement the Company agrees to use its commercially reasonable efforts to file amendments to such Registration Statement as may permitted by the SEC, covering the maximum number of Registrable Securities then permitted to be necessary in order registered by the SEC on Form S-3, or such other form available to enable such offering to take place.
(vii) Without limiting Section 3register for resale the Registrable Securities as a secondary offering, subject, in connection with any each case, to the provisions of Section 2(b). If the number of Preferred Shares proposed to be included in the Registration Statement exceeds the maximum number of Registrable Securities then permitted to be registered by the SEC on Form S-3, or such other form available to register for resale the Registrable Securities as a secondary offering, the limitation on the number of Demand Registration pursuant to and Registrations in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file or shall be changed such that the Company shall be required to cause to be prepared and filed (1) such effected one additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may Demand Registration for each occurrence where the number of Preferred Shares proposed to be necessary or advisable to register or qualify included in the securities subject to such Demand Registration, including under Registration Statement exceeds the securities laws maximum number 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, Triangle 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 then permitted 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 registered 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 thereofSEC.
Appears in 1 contract
Sources: Registration Rights Agreement (Generation Income Properties, Inc.)
Demand Registration. (i) Any On any two (2) occasions after the date hereof, the Company shall, at the written request of any Holder of Registrable Shares, cause to be filed a registration statement (a "Demand Registration Statement") under the Securities Act relating to the sale by the Holder of all or part of such Holder's Registrable Shares; provided, however, that holds any Registrable Securities -------- ------- the Company shall have no obligation pursuant to this Section 2(a)(i) unless the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”conditions set forth in Section 2(a)(ii), to require Triangle to, pursuant to the terms of and subject to the limitations contained elsewhere in this Agreement, prepare and file with are satisfied. Upon the Commission a Registration Statement registering Company's determination that such conditions have been satisfied, 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle Company shall give written notice of such Demand Notice the proposed registration to all Holders and, as soon as reasonably practicable thereafter, shall, subject of Registrable Shares. Subject to the limitations of this Section 2(a)conditions set forth below, file a each such Holder shall have the right, by giving written notice to the Company, within fifteen (15) days after the notice referred to in the preceding sentence has been given by the Company, to elect to have included in the Demand Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt or part of such notice of Holder's Registrable Shares. Thereupon, the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and Company shall use all commercially reasonable efforts to cause such Demand Registration Statement to become be filed with, and be declared effective by, the Securities and Exchange Commission (the "SEC") and shall use commercially reasonable efforts to cause the Registrable Shares elected to be included in the Demand Registration Statement to be registered under the Securities Act and remain effective under Act. Notwithstanding the Securities Act until all Registrable Securities covered by such foregoing, the Company shall be entitled to postpone the filing of any Demand Registration Statement otherwise required to be prepared and filed by it pursuant to this Section 2(a)(i) for a reasonable period of time (but in no event longer than ninety (90) days) if, at the time it receives a request for registration, the Board of Directors of the Company has determined in good faith that such filing would require the disclosure of a material pending transaction or event and that such disclosure would have been sold a material adverse effect on the Company; provided that the right to postpone the filing of any Demand Registration Statement may only be exercised once in any twelve (the “Effectiveness Period”)12) month period.
(iiiii) Subject to The Company shall have no obligation under Section 2(a)(i) unless the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect following conditions are satisfied:
(A) more than two Any Holder who requests that the Company cause to be filed a Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations Registration Statement pursuant to this Agreement and Section 2(a)(i) must provide to the Company a certificate (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all the "Authorizing Certificate"), substantially in the form of the Registrable Securities held Exhibit A hereto, --------- that is signed by the Holders providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of at least twenty-five percent (25%) of the aggregate number and type of all outstanding Registrable Securities on Shares, at 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle time such request is made. The Authorizing Certificate shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that set forth (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate the name of 120 days in any 12 month periodeach Holder signing such Authorizing Certificate, (ii) during any Blackout Period contemplated the number of Registrable Shares held by Section 2(a)(iv)(B) or any Suspension Periodeach such Holder, Triangle shall not engage in any transaction involving and, if different, the offer, issuance, sale, or purchase number of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible NoteRegistrable Shares such Holder has elected to have registered, and (iii) during any Blackout Period contemplated a certification from each such Holder that it is requesting the registration of only those shares of Common Stock received by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder such Holder upon the redemption of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose Units pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration Partnership Agreement. Any Holder whose Registrable Shares have become eligible for any offering and selling of Registrable Securities shall be effected sale pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form Rule 144(k) promulgated under the Securities Act (if available shall not be included for purposes of calculating the percentage of Holders required to Trianglesign an Authorizing Certificate. If the Company determines that a Holder's Shares have become eligible for sale pursuant to Rule 144(k); provided, howeverthe Company shall, that if at any time a Registration Statement on Form S-3 is effective and a the request of such Holder, deliver to such Holder provides written notice an opinion of counsel to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placeeffect.
(viiB) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare and file A Holder may only request that the Company register those Registrable Shares of Common Stock received by such Holder from the Company upon the redemption of some 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 all of such states as the Holders shall reasonably request; provided, however, that no such qualification Holder's Units.
(C) The Company shall be required obligated to file only one Demand Shelf Registration Statement during any twelve (12) month period during which no Registration Statement has been in any jurisdiction where, as a result thereof, Triangle 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 thereofeffect.
Appears in 1 contract
Sources: Registration Rights Agreement (Bradley Real Estate Inc)
Demand Registration. (ia) Any Holder that holds Subject to Section 2.1(c), at any time after the Closing, Holders holding in the aggregate at least a majority of the Registrable Securities shall have may request, in writing (the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”"Registration Request"), to require Triangle to, pursuant to that the terms Company effect the registration 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 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 such number of Registrable Securities as indicated in the Registration Request. The Holders, in the aggregate, shall be entitled to one Registration Request. If the Holders initiating the registration intend to distribute the Registrable Securities by means of an underwriting, they shall so advise the Company in the Registration Request. Upon receipt of the Registration Request, the Company shall promptly give written notice of the requested registration to all of the Holders not included in the Registration Request and each such Holder shall have ten (10) days to notify the Company in writing that such Holder desires to have all or a portion of such Holder's Registrable Securities included in the Registration Request. In the event the Registration Request indicates that the Initiating registration is to be underwritten, the right of any Holder intends to include participate shall be conditioned on such Holder's participation in such Demand Registrationunderwriting.
(b) Upon receipt of a Registration Request, the Company shall file with the Commission, promptly but not later than thirty (30) days after the date the Registration Request is delivered to the Company, a registration statement (the "Registration Statement") on Form S-3 (or a successor form), or on Form S-1 (or a successor form) if Form S-3 is not available, covering the resale to the public by the Holders of the Registrable Securities. In no event shall the Company be required to file a Registration Statement pursuant to this Section 2.1 before the ninetieth (90) day after the Closing. Except as otherwise expressly provided herein, the Company shall use its good faith best efforts to cause the Registration Statement to be declared effective and to expedite and accelerate all aspects of the registration process.
(c) If the Board, in its good faith judgment after consultation with outside counsel, determines that any registration of Registrable Securities should not be made or continued because it would materially interfere with any material financing, acquisition, corporate reorganization or other similar material transaction involving the Company or any of its subsidiaries or that such registration would require disclosure of non-public information that the Board, in its good faith judgment after consultation with outside counsel, deems not advisable to disclose (a "Corporate Development"), the Company may postpone for a reasonable period of time (x) filing a Registration Statement required to be filed under this Section 2.1, and (y) in the case in which a Registration Statement has been filed pursuant to this Section 2.1, causing such Registration Statement to become effective; provided that such postponement shall not exceed either (i) ninety (90) days, or (ii) if during such postponement the Company files a Registration Statement pursuant to which all Registrable Securities are permitted to be registered in accordance with Section 2.2, one hundred eighty (180) days. The Company shall give written notice to the Holders of its determination to postpone such offering or withdraw such Registration Statement and of the fact that the Corporate Development for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof. Notwithstanding anything to the contrary contained herein, the Company may not postpone the filing or effectiveness of a Registration Statement more than once in no event any twelve-month period. In addition, the Company shall Triangle only be required to effectuate a Demand effect one Registration for Registrable Securities having an aggregate value of less than $30 million based on Statement pursuant to this Section 2.1.
(i) The filing by the VWAP of such Registrable Securities as Company of the date Registration Statement pursuant to a Registration Request which is not made effective as a result of the Demand Notice.action taken by any Holder; or
(ii) Within five Business Days Any time after the Company has commenced preparation of the receipt of Registration Statement, the Demand Notice, Triangle shall give written notice withdrawal by the Holders from the Registration Request of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations number of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that would reduce the Holders shall number of Registrable Securities to which the Registration Request applies below a majority of all Registrable Securities shall, in writing request (such request to be given to Triangle within three days of receipt of such notice each case, count as the exercise of the Demand Notice given by Triangle pursuant to registration right granted under this Section 2(a)(ii)2.1 and the Company shall have no further obligation under this Section 2.1.
(e) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become The Company will keep any registration or post-effective amendment filed under the Securities Act and remain Section 2.1 effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold the earliest of (i) the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering date that all of the Registrable Securities held by have been sold pursuant to the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month periodregistration, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(Bthe date that the Registrable Securities may be sold under the provisions of Rule 144(k) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided date that if is 270 days after the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution effective date of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personregistration.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Demand Registration. (ia) Any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice Subject to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of this Agreement, including Section 2(c), if at any time the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective Company receives a written request from any Investor that the Company register under the Securities Act and remain effective Registrable Securities, then the Company shall file, as promptly as reasonably practicable but no later than the applicable Filing Deadline, a registration statement under the Securities Act until covering all Registrable Securities covered by that such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject Investor requests to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registered. The registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration registration shall be effected on another appropriate form for such purpose pursuant to purpose) and, if the Securities Act) and if Triangle becomesCompany is a WKSI as of the Filing Deadline, 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 . The Company shall use its commercially reasonable efforts to cause the registration statement to be on Form S-3 declared effective or any equivalent or successor form otherwise to become effective under the Securities Act as soon as reasonably practicable but, in any event, no later than the Effectiveness Deadline, and shall use its commercially reasonable efforts to keep the registration statement continuously effective under the Securities Act until the earlier of (if available to Triangle); provided, however, 1) the date on which such Investor notifies the Company in writing that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included in such registration statement have been sold or the offering therefor has been terminated or (2) (x) fifteen (15) Business Days following the date on which such Registration Statementregistration statement was declared effective by the SEC, Triangle will amend or supplement such if the Company is a WKSI and filed an Automatic Shelf Registration Statement as may in satisfaction of such demand, (y) thirty (30) Business Days following the date on which such registration statement was declared effective by the SEC, if the Company is not a WKSI and registered for resale the Registrable Securities on Form S-3 in satisfaction of such demand or (z) fifty (50) Business Days following the date on which such registration statement was declared effective by the SEC, if the Company is neither a WKSI nor then eligible to use Form S-3 and registered for resale the Registrable Securities on Form S-1 or other applicable form in satisfaction of such demand; provided that each period specified in clause (2) of this sentence shall be necessary in order extended automatically by one (1) Business Day for each Business Day that the use of such registration statement or prospectus is suspended by the Company pursuant to enable such offering any Suspension Period, pursuant to take place(d) or pursuant to Section 5(i).
(viib) Without limiting If any Investor intends to distribute the Registrable Securities covered by such Investor's request by means of an underwriting, (i) such Investor shall so advise the Company as a part of its request made pursuant to Section 2(a) and (ii) such Investor shall have the right to appoint the book-running, managing and other underwriter(s) in consultation with the Company.
(c) IHC shall have the right to effect only one demand registration pursuant to a registration statement on Form S-3 only pursuant to this Section 2 at any time following January 23, 2021. The Company shall not be required to effect a demand registration at TCP-ASC's request pursuant to this Section 2 (A) unless the number of Registrable Securities requested to be registered hereunder represent at least 10% of the then-outstanding Common Stock and (B) (i) after the Company has effected six registrations at TCP-ASC's request pursuant to this Section 2 (of which no more than three may be on a form other than Form S-3), and each of such registrations has been declared or ordered effective and kept effective by the Company as required by Section 5(a); or (ii) more than twice at TCP-ASC's request during any single calendar year.
(d) Notwithstanding anything to the contrary in this Agreement, (1) upon notice to the demanding Investor, the Company may delay the Filing Deadline and/or the Effectiveness Deadline with respect to, or suspend the effectiveness or availability of, any registration statement for up to ninety (90) days in the aggregate in any twelve-month period (a "Suspension Period") if the Company would have to make an Adverse Disclosure in connection with the registration statement; provided that (i) any suspension of a registration statement pursuant to Section 6(b) shall be treated as a Suspension Period for purposes of calculating the maximum number of days of any Suspension Period under this (d) and (ii) no Suspension Period may overlap with any redemption pursuant to Section 6 of the Series A Certificate of Designations through the date that is thirty (30) Business Days following any such redemption; and (2) upon notice to the demanding Investor, the Company may delay the Filing Deadline and/or the Effectiveness Deadline with respect to any registration statement for a period not to exceed thirty (30) days prior to the Company's good faith estimate of the launch date of, and ninety (90) days after the closing date of, a Company initiated registered offering of equity securities (including equity securities convertible into or exchangeable for Common Stock and any offering of equity securities that triggers rights under Section 5.3 of the Investor Rights Agreement); provided that (i) the Company is actively employing in good faith all commercially reasonable efforts to launch such registered offering throughout such period, (ii) such demanding Investor is afforded the opportunity to include Registrable Shares in such registered offering in accordance with Section 3) and (iii) the right to delay or suspend the effectiveness or availability of such registration statement pursuant to this clause (2) shall not be exercised by the Company more than twice in any twelve-month period and not more than ninety (90) days in the aggregate in any twelve-month period. If the Company shall delay any Filing Deadline pursuant to this clause (d) for more than ten (10) Business Days, such demanding Investor may withdraw the demand therefor at any time after such ten (10) Business Days so long as such delay is then continuing by providing written notice to the Company to such effect, and any demand so withdrawn shall not count as a demand for registration for any purpose under this Section 2, including Section 2(c).
(e) Notwithstanding the foregoing, if the managing underwriter(s) of an underwritten offering in connection with any Demand Registration registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A) promptly prepare 2 advises the Company and file or cause the demanding Investor in writing that in its good faith judgment the number of Registrable Securities requested to be prepared and filed (1) included in such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may offering exceeds the number of Registrable Securities which can be necessary or advisable to register or qualify the securities subject sold in such offering at a price acceptable to such Demand Registrationdemanding Investor, including under then the securities laws number of Registrable Securities so requested to be included in such states as the Holders shall reasonably request; provided, however, that no such qualification offering shall be required reduced, pro rata, based on the aggregate number of Registrable Securities beneficially owned by each such demanding Investor, to that number of shares which in any jurisdiction where, as a result thereof, Triangle would become subject to general service the good faith judgment of process or to taxation or qualification to do business the managing underwriter can be sold in such jurisdiction solely as a result of registration and (2) offering at 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 thereofprice.
Appears in 1 contract
Demand Registration. (a) At any time upon the written request of one or more Founding Stockholders holding Restricted Securities representing at least 30% of the outstanding Restricted Securities requesting that the Corporation effect the registration under the Securities Act of such Founding Stockholders’ Restricted Se4curities having an aggregate net offering price of at least $5,000,000 (based on the current market price or fair market value), and specifying the intended method of disposition thereof and whether or not such requested registration is to be an underwritten offering (such notice is hereinafter referred to as a ‘Founding Stockholder Request”), the Corporation will promptly, upon receipt of such Founding Stockholder Request, give written notice of such requested registration to all other Holders of Restricted Securities and thereupon the Corporation will, as expeditiously as possible, use its best efforts, to effect the registration under the Securities Act on Form S-1 or other appropriate form of:
(i) Any Holder that holds the Restricted Securities which the Corporation has been so requested to register by such Founding Stockholder Request; and
(ii) all other Restricted Securities which the Corporation has been requested to register by any Registrable Securities shall have other Holders by written request given to the option and right, exercisable by delivering a Corporation within 30 days after the giving of such written notice to Triangle by the Corporation (a “Demand Notice,” and which request shall specify the Holder that delivers intended method of disposition of such a Demand Notice, the “Initiating Holder”Restricted Securities), to require Triangle to, pursuant all to the terms of and subject extent requisite to permit 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 disposition (in accordance with the intended timing and method or methods thereof as aforesaid) of distribution thereof specified in the Demand NoticeRestricted Securities so to be registered. provided, which may include sales on a delayed or continuous basis however, that the Corporation shall not be obligated to undertake more than two registration statements pursuant to Rule 415 (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. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Noticethis Section 4.1.
(b) Subsequent to the requests made pursuant to Section 4.2(a) hereof, the Corporation shall use its best efforts to achieve such effectiveness promptly. The Corporation may postpone the filing of any registration statement required hereunder for a reasonable period of time, not to exceed ninety (90) days, if (i) the Corporation has been advised by legal counsel that such filing would require the disclosure of a material transaction, or other factor, and the Corporation determines reasonably and in good faith that such disclosure would have a material adverse effect on the Corporation; or (ii) Within five Business Days in the good faith determination of the receipt Corporation’s Board of Directors, the Demand NoticeCorporation will be materially and adversely affected by the required registration.
(c) Holders shall have the right, Triangle shall give by giving written notice to the Corporation within 20 days after the Corporation provides its notice, to elect to have included in such registration such of their Registrable Shares as such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shallmay request in such notice of election, subject to the limitations of this Section 2(a), file a Registration Statement covering all approval of the Registrable Securities that underwriter managing the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”)offering.
(iiid) Subject Registrations under this Section 4.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Corporation and as shall be reasonably acceptable to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) Holders of more than two Demand Registrations in any 12 month period, 75% (Bby number of shares) more than a total of five Demand Registrations pursuant the Founding Stockholders’ Restricted Securities so to this Agreement be registered and (Cii) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all as shall permit the disposition of the Registrable such Restricted Securities held by the Holders providing such Demand Notice shall have become effective under the 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 on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof disposition specified in the Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required their request for such registration. The Corporation agrees to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle registration statement all information which Holders of Restricted Securities for sale for its own account being registered shall reasonably request.
(e) If a requested registration pursuant to this Section 4.1 involves an underwritten offering, the underwriter or for underwriters thereof shall be selected by the account Holders of any other Person; provided that if more than 75% (by number of shares) of the Founding Stockholders’ Restricted Securities to be so registered, subject to the Corporation’s approval which will not be unreasonably withheld.
(f) If a requested registration pursuant to this Section 4.1 involves an underwritten offering, and the managing underwriterunderwriter shall advise the Corporation in writing (with a copy to each Holder of Restricted Securities requesting registration) that, if anyin its opinion, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities shares proposed to be included in such offering should be limited due to market conditions, the Corporation will include in such registration, to the extent of the number which the Corporation is so advised can be sold in such offering, the Registrable Restricted Securities requested to be sold by the Holders shall be included in such registration, pro rata among the Holders requesting such registration before any Triangle Securities proposed to be sold for on the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part basis of the Registrable percentage of the Restricted Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 of 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, Triangle 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 Corporation held by the Holders to enable the Holders to consummate a public sale of which have requested that such Registrable Restricted Securities in accordance with the intended timing and method or methods of distribution thereofbe included.
Appears in 1 contract
Sources: Shareholder Agreement (Universal Stainless & Alloy Products Inc)
Demand Registration. (ia) Any From and after the one (1) year anniversary following the Closing, and subject to Section 1.1(b), Section 1.1(c) and Section 2.3, upon written request from a Holder requesting that holds any the Company effect the registration under the Securities Act of all or part of the Registrable Securities held by such Holder, which notice may be delivered at any time after such one (1) year anniversary and which notice shall have specify the option and rightintended method or methods of disposition of such Registrable Securities (“Registration Request Notice”), exercisable unless such Registrable Securities are included in a currently effective Registration Statement permitting the resale of such Registrable Securities in the manner contemplated by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Registration Request Notice, the “Initiating Holder”), Company will use its commercially reasonable efforts to require Triangle to, pursuant to file the terms of and subject to appropriate Registration Statement under the limitations contained in this Agreement, prepare and file Securities Act with the Commission a SEC as promptly as reasonably practicable after receipt of the Registration Request Notice and, as promptly as reasonably practicable following such Registration Request Notice, cause such Registration Statement registering to be declared effective by the offering SEC and sale to permit the disposition of the number and type of such 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 disposition stated in the Demand such Registration Request 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event Company shall Triangle not be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on maintain the VWAP effectiveness of such Registrable Securities as Registration Statement beyond the earlier to occur of (i) one hundred twenty (120) days after the effective date of the Demand Notice.
thereof and (ii) Within five Business Days consummation of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all distribution by Holder of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (period, the “Effectiveness Period”).
(iiib) Subject Notwithstanding Section 1.1(a), if the Company previously shall have caused a Registration Statement to be declared effective by the SEC with respect to the other limitations contained in this AgreementRegistrable Securities, Triangle is the Company shall not obligated hereunder be required to effect (A) more than two Demand Registrations in any 12 month period, (B) more than cause a total of five Demand Registrations subsequent Registration Statement to be declared effective by the SEC pursuant to this Agreement and Section 1.1 until a period of one hundred twenty (C120) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all days shall have elapsed from the effective date of the Registrable Securities held by the Holders providing most recent such Demand Notice shall have become effective under the 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 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 Noticeprevious registration.
(ivc) Notwithstanding any other provision of this Section 2(a1.1(a), Triangle the Company shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days more than two (2) registrations pursuant to this Section 1.1 in any 12 twelve (12) consecutive month period, period or (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for Registrable Securities, the account fair market value of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect which on the price, timing or distribution date of receipt by the Company of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other PersonRegistration Request Notice is less than twenty million dollars ($20,000,000).
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Registration Rights Agreement (Approach Resources Inc)
Demand Registration. (i) Any At any time after the expiration of the applicable Lock-Up Period, any Preferred Holder that holds any Registrable Securities and Sponsoring Holder shall severally have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for unless the Registrable Securities having of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of less than at least $30 75 million based on the VWAP of such Registrable Securities (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (ithe 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) in no event shall any Blackout Period together with any Suspension Period collectively exceed have an aggregate value of 120 days in less than $75 million. If at any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) time the Commission takes the position that some or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution all of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and filed pursuant to a Holder provides written notice to Triangle that it intends to effect an offering Demand Registration must be removed from such Registration Statement (such portion of the Registrable Securities, the “Cut Back Shares”) in order for all or part of the Registrable Securities included 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, Triangle will amend or supplement then if the Initiating Holder so elects, the Company shall remove the Cutback Shares from 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (WildHorse Resource Development Corp)
Demand Registration. (i) Any Holder that holds If, on or at any Registrable Securities shall have time after the option and rightEffectiveness Date there is no currently effective “Shelf” Registration Statement, exercisable by delivering a then at any time thereafter, upon written notice to Triangle (a “Demand Notice,” and the Demand”) from a Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 or Holders holding at least 50% of the number and type of Registrable Securities on requesting that the terms and conditions specified in Company effect the Demand Notice in accordance with registration under the Securities Act of any or all of the Registrable Securities held by such Holder or Holders, which notice shall specify the intended timing and method or methods of distribution thereof specified in disposition of such Registrable Securities, the Demand Company shall, within five (5) days after receiving the Holder’s or Holders’ Demand, give written notice (the “Request Notice”) of such registration request to all other Holders, which may include sales on except if all the Registrable Securities are held by a delayed or continuous basis pursuant to Rule 415 (a “Demand Registration”)single Holder, no Request Notice shall be required. The Demand Request Notice must set forth shall offer to each such Holder the opportunity to include in such Registration Statement such number of Registrable Securities that the Initiating as such Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of may request within ten (10) days after the date of the Demand Request Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a)) and to compliance with the other provisions of this Agreement. As promptly as possible after such ten (10) day period, but no later than the 30th day following receipt of the Demand, the Company shall file a Registration Statement covering with the Commission for purposes of effecting, in the manner set forth in this Section 2 and Section 3 hereof, the registration under the Securities Act of all of the such Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder for disposition in accordance with the terms intended method or methods of disposition stated in the Holder’s or Holders’ request and conditions of the Demand Notice and shall use all commercially reasonable its best efforts to cause such Registration Statement to become be declared effective under the Securities Act as promptly as possible after the filing thereof, provided that:
(i) if the filing of a Registration Statement in respect of a Demand would require the Company (A) to make an Adverse Disclosure or (B) if the Company has already commenced a bona fide financing plan through a formal “all hands” meeting or comparable action, and, in the good- faith business judgment of a majority of the Board of Directors, a Demand registration at the time and remain effective under on the Securities Act until all Registrable Securities covered by terms requested would have a material adverse effect on the ability of the Company to obtain such financing, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing of such Registration Statement have been sold (for the “Effectiveness Period”).
(iii) Subject shortest period of time determined in good faith by the Company to be necessary for such purpose; provided, however that the other limitations contained in this Agreement, Triangle is Company shall not obligated hereunder be permitted to effect do so (A) more than two Demand Registrations in three times during any 12 twenty-four month period, (B) more than for a total of five Demand Registrations pursuant to this Agreement and period not exceeding 40 days on any one occasion or (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to exceeding 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, . The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 2(a)(i);
(ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle the Company shall not engage in any transaction involving be obligated to file a Registration Statement relating to a registration request pursuant to this Section 2(a): (A) on more than three occasions (it being understood and agreed that the offer, issuance, sale, or purchase of Triangle Securities (whether Company shall only be responsible for Registration Expenses for the benefit of Triangle or a third Personfirst two occasions), except transactions involving (B) within a period of one (1) month after the issuance effective date of any other Registration Statement of the Company demanded pursuant to this Section 2(a); or purchase (C) if such registration request is for a number of Triangle Registrable Securities that represent in the aggregate (on an as contemplated converted basis) less than one third of the number of Shares originally acquired by Triangle employee benefit plans the Holders;
(iii) the Company shall be deemed to have effected a Demand registration if (i) the applicable Registration Statement is withdrawn at the request of the Purchasers after having been filed with the Commission or employee (ii) the applicable Registration Statement is declared effective by the Commission and remains effective for not less than 180 days, or, if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter or director arrangements or underwriters is required by law for the delivery of a Prospectus in connection with the conversion sale of Registrable Securities by an underwriter or exercise of outstanding securitiesdealer;
(iv) a Holder may elect to withdraw its Registrable Securities from a Demand Registration at any time. If all such Holders do so, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle Company shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.cease its efforts to secure registration; and
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed Registrations pursuant to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders this Section 2(a) shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration registration shall be effected on another appropriate form for such purpose pursuant form, reasonably acceptable to the Securities Act) and if Triangle becomes, and is at the time of its receipt Holders 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part majority of the Registrable Securities included on such Registration StatementSecurities, Triangle will amend or supplement such Registration Statement and as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 shall permit the securities subject to such Demand Registration, including under disposition of 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, Triangle 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 of distribution or methods of distribution thereofspecified in the applicable Holder’s or Holders’ requests for such registration.
Appears in 1 contract
Sources: Securities Purchase Agreement (Melco International Development LTD)
Demand Registration. (i) Any At any time after 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 Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for unless the Registrable Securities having of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of less than at least $30 50 million based on the VWAP of such Registrable Securities (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) Within five Business Days of (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, Triangle the Company shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafterwithin 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 covering 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 Triangle the Company within three days of Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of such notice of the Demand Notice given by Triangle the Company pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and ). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become effective under the Securities Act 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 limitations contained in this Agreement, Triangle the Company is not obligated hereunder to effect (A) more than two a Demand Registrations in Registration within 90 days after the closing of any 12 month periodUnderwritten Offering, (B) more than a total of five four Demand Registrations pursuant to this Agreement for which Kimmeridge (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 Rock Ridge (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 Source (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder, and (CE) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice Initiating Holder shall have become effective under the 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 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; provided, that a demand for a Shelf Registration Statement shall not count against the number of allowable Demand Registrations for (B), (C) and (D) of this paragraph. 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. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $50 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (A Holder may withdraw all or any amendment theretoportion 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 shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) for a period of up to 60 days, if unless (A) the Board determines that a postponement is 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 best interest withdrawn registration of Triangle and its stockholders generally due such Registrable Securities (based on the number of securities the Initiating Holder sought to a pending transaction involving Triangleregister, as compared to the total number of securities included in such Demand Registration) or (B) the Board determines such registration would render Triangle unable withdrawal is made following the occurrence of a Material Adverse Change or pursuant to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose Company’s request for preserving as confidential (any such period, a “Blackout Period”suspension pursuant to Section 3(o); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle The Company may include in any such Demand Registration other Triangle Company Securities for sale for its own account or for the account of any other Person; provided that , subject to Section 2(a)(vi) and Section 2(d)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the managing underwriter, if any, for Initiating Holder advises the Underwritten Offering determines Company that in its reasonable opinion the type or aggregate number of Triangle Securities proposed securities requested to be offered in such offering would included exceeds the number that can be included without being likely to have an a significant adverse effect in any material respect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities proposed then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such offeringDemand Registration, to the Registrable Securities Company, and (C) third, if there remains availability for additional securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed Demand Registration, to be sold for the account of Triangle or any other Personholders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vivii) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible to register for resale A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities on Form S-3in accordance with the intended method or methods of disposition specified in the Demand Notice; provided, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to that if the Securities Act) and if Triangle Company 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 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 Trianglethe Company); provided, however, that if . If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, 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 states jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
(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 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 shall the Company be required to 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 the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Desert Peak Minerals Inc.)
Demand Registration. (ia) Any Holder that holds any Registrable Securities shall have One year following the option and right, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant to the terms date of this Agreement 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate RSJ or holders of a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all majority of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 then outstanding (the “Effectiveness Period”).
"Majority Holders") (iiithe Majority Holders and RSJ may sometimes hereinafter be referred to as the "Requester") Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held may by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends the Company (a "Demand Notice") request the Company to effect an offering the Registration of all or part of the Registrable Securities owned by such Requester and their respective Affiliates. Upon receipt of such a request, (i) the Company shall promptly (but in no event later than twenty (20) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have twenty (20) days from the date such notice is given to notify the Company in writing of their desire to be included on in such registration, and (ii) the Company shall as soon as practicable, cause the Registrable Securities specified in such Demand Notice and the Registrable Securities held by the other holders of Registrable Securities who gave such notice to the Company, to be Registered and/or qualified for sale and distribution in such jurisdictions as the Requester may reasonably request. The Company shall use its reasonable best efforts to cause such Registration Statementand/or qualification to be complete as soon as practicable, Triangle will amend or supplement but in no event later than sixty (60) days, after receipt of the Demand Notice. The Company shall be obligated to effect no more than two (2) Registrations requested by RSJ and shall be obligated to effect no more than two (2) Registrations requested by the Majority Holders under this Section 2.1; provided that a Registration shall not be deemed to have been effected under this Section 2.1 unless (i) all Registrable Securities set forth in such Demand Notice are Registered in such Registration, (ii) the offering of Registrable Securities pursuant to such Registration Statement as may be necessary in is not subject to any stop order, injunction or other order to enable or requirement of the Commission (other than any such offering to take place.
(vii) Without limiting Section 3stop order, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a)injunction, Triangle shall, (A) promptly prepare and file or cause other requirement of the Commission prompted by act or omission of the Holders of a majority of the Registrable Securities requested to be prepared included therein) and filed (1iii) such additional formsRegistration is closed, amendments, supplements, prospectuses, certificates, letters, opinions and or withdrawn at the request of the Requester (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, Triangle would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely than as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary a material adverse change to apply for listing or to list the Company). The Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the Holders of a majority of the Registrable Securities subject requested to be included therein. If the underwriters for such Demand Registration advise the Company in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such Registration exceeds the number of Registrable Securities and other securities, if any, 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 therein, the Company shall include the number of Registrable Securities which can be so sold in the following order of priority: (a) first, the Registrable Securities requested to be included by the Requester, which in the opinion of such underwriter can be sold in an orderly manner within the price range of such offering, pro rata among them on the Trading Market basis of the number of Registrable Securities requested to be included therein by each such Holder, and (Bb) do any and all second, other acts and things that may securities requested to be reasonably necessary or appropriate or reasonably requested by included therein to 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 thereofextent permitted hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (MYnd Analytics, Inc.)
Demand Registration. (i1) Any Holder that holds At any time and from time to time beginning on the one-year anniversary of the Closing Date (as defined in the Merger Agreement) and ending on the ten-year anniversary of such Closing Date, any Holder(s) holding no less than fifty percent (50%) of the Registrable Securities (or, with respect to a second Demand Registration hereunder, fifty percent (50%) of the remaining Registrable Securities), shall have the option and rightright to require the Company to file a registration statement under the Securities Act covering all or any part of their respective Registrable Securities, exercisable by delivering a written notice to Triangle (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle to, pursuant request therefor 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 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 Company specifying the number of Registrable Securities that the Initiating Holder intends to include be included in such Demand Registration. Notwithstanding anything registration by such Holder(s), a price range acceptable to such Holder(s) for the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP sale of such Registrable Securities and the intended method of distribution thereof. All such requests pursuant to this Section 2(a) are referred to herein as "DEMAND REGISTRATION REQUESTS" and the registrations so requested are referred to herein as "DEMAND REGISTRATIONS" and, with respect to any Demand Registration, the Holder(s) making such demand for registration being referred to as the "INITIATING HOLDER". As promptly as practicable, but no later than 10 Business Days after receipt of a Demand Registration Request, the Company shall give written notice (the "DEMAND EXERCISE NOTICE") of such Demand Registration Request to all Holders of record of Registrable Securities. Upon receipt of the Demand Exercise Notice, each Other Holder shall have 10 Business Days from the date of receipt to deliver a written request to the Company asking that such Other Holder's Registrable Securities be included in the registration statement. Such written request by the Other Holder shall include the number of Registrable Securities held by such Other Holder that he desires to be included in the registration statement. The Company shall include in a Demand Notice.
Registration (i) the Registrable Securities of the Initiating Holder, (ii) Within five Business Days the Registrable Securities of any Other Holders that shall have made a written request to the Company for inclusion thereof in such registration (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Other Holders) within 30 days after the receipt of the Demand Notice, Triangle shall give written notice of such Demand Exercise Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to and the limitations of this Section 2(a), file a Registration Statement covering all Primary Securities and Other Securities of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) Company requested to be included in such registration by holders of such Other Securities and (iii) any Primary Securities the Company wishes to register. The Company shall, as expeditiously as practicable following a Demand Registration as promptly as practicable as directed Request, use its best efforts to (i) prepare, file and cause to become effective registration of the Registrable Securities on Form S-1, Form SB-2 or Form S-3 (if available) or any successor form promulgated by the SEC pursuant to this Section 2(a)(A), and (ii) if requested by the Initiating Holder in accordance with the terms and conditions Holder, request acceleration of the Demand Notice and use all commercially reasonable efforts effective date of the registration statement relating to cause such Registration Statement to 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 (the “Effectiveness Period”)registration.
(iii2) Subject The rights of Holders of Registrable Securities to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five request Demand Registrations pursuant to this Agreement and (CSection 2(a) a subsequent Demand Registration pursuant are subject to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the 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 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.following limitations:
(ivi) Notwithstanding any other provision of this Section 2(a), Triangle the Company shall not be required to take any action to effect any Demand Registration after it has effected two (2) such registrations pursuant to this Section 2 (a), and such registrations have been declared or ordered effective; PROVIDED, if the number of Registrable Securities requested to be included in such registration exceeds the number which, in the opinion of the managing underwriter, can be sold in such offering within a price range acceptable to the Initiating Holder and as a result only a pro rata portion of the Initiating Holder's Registrable Securities representing less than seventy five percent (75%) of the Registrable Securities of the Initiating Holder requested by such Initiating Holder for inclusion are included in the registration and underwriting pursuant to Section 2(a)(C), then such registration shall not be deemed to be a Demand Registration under this Section 2(a);
(ii) the Company shall not be required to take any action to effect any Demand Registration within the 90-day period following the effective date of a previous Demand Registration; and
(iii) If the Company shall furnish to the 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 materially detrimental to the Company (including to any material proposed or file a Registration Statement (or any amendment theretoplanned material transaction involving the Company) and its stockholders for such registration to be effected at such time, in which event the Company shall have the right to defer the filing of the registration statement for a period of up to 60 days, if (A) not more than 90 days after receipt of the Board determines that a postponement is in request from the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”Holder under this Section 2(a); provided, however, that (i) in no event the Company shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days not utilize this right more than once in any 12 twelve month period. In such event, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Periodthe Holders requesting such Demand Registration will be entitled to withdraw such request and, Triangle shall if such request is withdrawn, such Demand Registration will not engage in any transaction involving count as one of the offer, issuance, sale, or purchase of Triangle Securities (whether for permitted Demand Registrations hereunder and the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or Company will pay all Registration Expenses in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rightssuch registration.
(v3) Triangle may include in any such Demand Registration other Triangle Securities In the event that a registration pursuant to this Section 2(a) is for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such a registered public offering would likely have involving an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offeringunderwriting, the Registrable Securities to be sold by Company shall so advise the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or as part of the Registrable Securities included on such Registration Statement, Triangle 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 Registration notice given pursuant to and in accordance with Section 2(a)(1) above. In such event, the right of any Holder to registration pursuant to this Section 2(a) shall be conditioned upon such Holder's participation in the underwriting arrangements required by this Section 2(a)(3), Triangle 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 inclusion 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, Triangle 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 Holder's Registrable Securities in accordance with the intended timing and method or methods of distribution thereofunderwriting to the extent requested shall be limited to the extent provided herein.
Appears in 1 contract
Demand Registration. (i) Any At any time after the expiration of the Lock-Up Period, or prior to the expiration of the Lock-Up Period with the written consent of three of the Representatives (as such term is defined in the Lock-Up Agreements), the Initial Holders (or any transferee to which an Initial Holder that holds any Registrable Securities has transferred in accordance with Section 8(e) rights under this Section 2(a)(i)) shall have the option and right, exercisable by delivering a written notice to Triangle the Company (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 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 RegistrationRegistration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Triangle the Company be required to effectuate a Demand Registration for unless the Registrable Securities having of the Holders to be included therein after compliance with Section 2(a)(ii) have an aggregate value of less than at least $30 25 million based on the VWAP of such Registrable Securities (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) Within five Business Days of (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, Triangle the Company shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafterbut in any event 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, as soon as reasonably practicable but in any event within 90 days thereof), shall, subject to the limitations of this Section 2(a), file a Registration Statement covering 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 Triangle the Company within three days of Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of such notice of the Demand Notice given by Triangle the Company pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and ). The Company shall use all commercially reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as reasonably practicable and remain effective under the Securities Act until the earlier of (A) 180 days (or five 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 limitations contained in this Agreement, Triangle the Company is not obligated hereunder to effect (A) more than two Demand Registrations in an Underwritten Offering within 90 days after the closing of any 12 month periodUnderwritten Offering, (B) more than a total of five eight Demand Registrations pursuant to this Agreement for which an Initial Holder (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice Initiating Holder shall have become effective under the 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 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. Further, a Demand Registration shall not
constitute a Demand Registration of the Initiating Holder for purposes of this Section 2(a)(iii) if, as a result of Section 2(a)(vi), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $25 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (A Holder may withdraw all or any amendment theretoportion 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 Shares such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2(a)(iii) for a period of up to 60 days, if unless (A) the Board determines that a postponement is 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 best interest withdrawn registration of Triangle and its stockholders generally due such Registrable Securities (based on the number of securities the Initiating Holder sought to a pending transaction involving Triangleregister, as compared to the total number of securities included in such Demand Registration) or (B) the Board determines such registration would render Triangle unable withdrawal is made following the occurrence of a Material Adverse Change or pursuant to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose Company’s request for preserving as confidential (any such period, a “Blackout Period”suspension pursuant to Section 3(o); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle The Company may include in any such Demand Registration other Triangle Company Securities for sale for its own account or for the account of any other Person; provided that , subject to Section 2(a)(vi) and Section 2(c)(iii).
(vi) In the case of a Demand Registration not being underwritten, if the managing underwriter, if any, for Initiating Holder advises the Underwritten Offering determines Company that in its reasonable opinion the type or aggregate number of Triangle Securities proposed securities requested to be offered in such offering would included exceeds the number that can be included without being likely to have an a significant adverse effect in any material respect on the price, timing or distribution of the securities offered or the market for the securities offered, the Company shall include in such Demand Registration only that number of securities that in the reasonable opinion of the Initiating Holder will not have such adverse effect, with such number to be allocated as follows: (A) first, pro-rata among all Holders (including the Initiating Holder) that have requested to participate in such Demand Registration based on the relative number of Registrable Securities proposed then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such offeringDemand Registration, the Registrable Securities Company, and (C) third, if there remains availability for additional securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or Demand Registration, any other Personholders entitled to participate in such Demand Registration, if applicable, based on the relative number of securities such holder is entitled to include in such Demand Registration.
(vivii) Subject to the limitations contained in this Agreement, Triangle the Company shall effect any Demand Registration on Form S-3 such appropriate registration form of the Commission (except if Triangle is not then eligible to register for resale A) as shall be selected by the Company and (B) as shall permit the disposition of the Registrable Securities on Form S-3, in which case such accordance with the intended method or methods of disposition specified in the Demand Registration shall be effected on another appropriate form for such purpose pursuant to Notice; provided that if the Securities Act) and if Triangle Company 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 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 Trianglethe Company); provided, however, that if . If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viiviii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, 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 states jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
(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 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 shall the Company be required to 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 the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Venator Materials PLC)
Demand Registration. Commencing three months after the Final Closing, record holders of a majority of the Shares included in the Units (i) Any Holder that holds any Registrable Securities “Majority Holders”), shall have the option and right, exercisable by delivering a written notice to Triangle on one (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”)1) occasion only, to require Triangle to, pursuant to demand that the terms of and subject to the limitations contained in this Agreement, Company prepare and file with the Commission a Registration Statement registering Form F-3 registration statement (or such other form that it is eligible to use) (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 RegistrationRegistration Statement”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends ) in order to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of register the Registrable Securities that (as hereinafter defined) for resale and distribution under the 1933 Act. The Majority Holders shall notify the Company in writing request (such request of their desire to be given to Triangle within three days of receipt of such notice of exercise the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by demand registration right described herein, and the Initiating Holder in accordance with the terms and conditions of the Demand Notice and Company shall use all its commercially reasonable best efforts to cause such Demand Registration Statement to become effective under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by be filed within sixty (60) days following its receipt of such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”)written notification; provided, however, that (i) in no event the Company shall any Blackout Period together with any Suspension Period collectively exceed an aggregate be entitled to defer the filing of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration Statement to not more than five (5) business days following the date the Company is in possession of financial statements that meet the requirements of the 1933 Act with respect to the Demand Registration Statement to be filed. Subject to Section 12.4 and the other Triangle provisions of this Agreement, the Company will register in the Demand Registration Statement not less than 100% of the Shares included in the Units (collectively the “Registrable Securities”). The registration right provided in this paragraph shall not apply to the extent of Registrable Securities for sale for its own account that may be sold pursuant to Rule 144, without regard to volume limitations, or for to Registrable Securities that are otherwise freely transferable without registration under the account 1933 Act; and the holders of any other Person; provided Registrable Securities that if may be sold pursuant to Rule 144 without regard to volume limitations, and of Registrable Securities that are otherwise freely transferable without registration under the managing underwriter1933 Act shall not be considered in determining the Majority Holders. Notwithstanding the foregoing, if any, for the Underwritten Offering determines nothing in this Agreement shall require that the type or Company register Registrable Securities in an amount that exceeds the number of Triangle securities that may be registered pursuant to applicable rules and regulations of the Commission at the time the Demand Registration Statement is filed (“Applicable Rules”). In the event that Applicable Rules do not permit all Registrable Securities proposed to be offered registered at the time the Demand Registration Statement is initially filed, the Company hereby agrees to include in the Demand Registration Statement such offering would likely have an adverse effect in any material respect on number of Registrable Securities as is permitted by Applicable Rules, and to file such amendments to the priceDemand Registration Statement, timing or distribution and/or such other and further registration statements, to be filed, as and when permitted by Applicable Rules, such that all of the Registrable Securities proposed are covered by an effective registration statement. For purposes of this Section, a demand by Majority Holders to be included file a Demand Registration Statement shall include any amendments and/or other and further registration statements necessary in such offeringorder for the Company to comply with its obligations under this Section. To the extent that Applicable Rules do not permit a Demand Registration Statement to include all of the Subscribers’ Registrable Securities in one filing, the Registrable Securities to be sold by the Holders Company shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling include each Subscriber’s pro-rata portion 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 in the Securities Act (if available to Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take placefiling.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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.
Appears in 1 contract
Sources: Subscription Agreement (China Natural Resources Inc)
Demand Registration. (i) Any Holder that holds At any Registrable Securities time and from time to time after the first anniversary of the date hereof but prior to the fifth anniversary of the date hereof, the holders of Underwriter Warrants shall have the option and right, exercisable by delivering a right to make written notice request of the Company on one occasion to Triangle register under the Act at least fifty percent (a “Demand Notice,” and 50%) of the Holder that delivers such a Demand Notice, Underlying Stock which would be issuable upon exercise of the “Initiating Holder”), to require Triangle to, Underwriter Warrants pursuant to the terms and conditions hereof. The Underlying Stock specified in such request or a request pursuant to Section 3(d) hereof is referred to herein as the "Subject Stock." Promptly upon receipt of and subject to such request, the limitations contained in this Agreement, prepare and Company shall file with the Commission a Registration Statement registering on the offering and sale applicable form for the registration 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice Subject Stock and use all commercially reasonable its best efforts to cause such Registration Statement to become effective (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (Rules and Regulations promulgated thereunder) as soon as practicable to permit or facilitate the “Effectiveness Period”).
(iii) sale and distribution of the Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than Stock. Immediately upon receipt of a total of five Demand Registrations request for registration pursuant to this Agreement Section 3(c), the Company shall notify each of the holders of Underwriter Warrants of such request. Notwithstanding the provisions of this Section 3(c), if the Company shall furnish to the holders of Underwriter Warrants 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 and (C) a subsequent Demand Registration pursuant to a Demand Notice if its stockholders for such a Registration Statement covering all to be filed and it is therefore essential to defer a filing of such Registration Statement, the Registrable Securities held by the Holders providing such Demand Notice Company shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient right to permit offers and sales 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) defer such filing for a period of up not more than one hundred twenty (120) days after receipt of the request from the holders of Underwriter Warrants to 60 days, if (A) the Board determines that effect such a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”)registration; provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days the Company may not utilize the right more than once in any 12 twenty-four (24) month period; and, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Periodprovided further, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number holders of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the priceUnderwriter Warrants may, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective in writing, withdraw such request for such registration and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of therefore preserve the Registrable Securities included on such Registration Statement, Triangle will amend or supplement such Registration Statement as may be necessary right provided in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle shall, (A3(c) promptly prepare and file or cause for the holders of Underwriter Warrants to be prepared and filed (1) request 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 thereofregistration.
Appears in 1 contract
Demand Registration. (ia) Any Holder that holds any One year following the date of this Agreement and subject to the terms herein, RSJ or holders of a majority of the Registrable Securities shall have then outstanding (the option “Majority Holders”) (the Majority Holders and right, exercisable RSJ may sometimes hereinafter be referred to as the “Requester”) may by delivering a written notice to Triangle the Company (a “Demand Notice,” and ”) request the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to 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 (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder Company to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five Demand Registrations pursuant to this Agreement and (C) a subsequent Demand the Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Holders providing such Demand Notice shall have become effective under the 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 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.
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or any Suspension Period, Triangle shall not engage in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Person.
(vi) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 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 Triangle); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of the Registrable Securities owned by such Requester and their respective Affiliates. Upon receipt of such a request, (i) the Company shall promptly (but in no event later than twenty (20) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have twenty (20) days from the date such notice is given to notify the Company in writing of their desire to be included on in such registration, and (ii) the Company shall as soon as practicable, cause the Registrable Securities specified in such Demand Notice and the Registrable Securities held by the other holders of Registrable Securities who gave such notice to the Company, to be Registered and/or qualified for sale and distribution in such jurisdictions as the Requester may reasonably request. The Company shall use its reasonable best efforts to cause such Registration Statementand/or qualification to be complete as soon as practicable, Triangle will amend or supplement but in no event later than sixty (60) days, after receipt of the Demand Notice. The Company shall be obligated to effect no more than two (2) Registrations requested by RSJ and shall be obligated to effect no more than two (2) Registrations requested by the Majority Holders under this Section 2.1; provided that a Registration shall not be deemed to have been effected under this Section 2.1 unless (i) all Registrable Securities set forth in such Demand Notice are Registered in such Registration, (ii) the offering of Registrable Securities pursuant to such Registration Statement as may be necessary in is not subject to any stop order, injunction or other order to enable or requirement of the Commission (other than any such offering to take place.
(vii) Without limiting Section 3stop order, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a)injunction, Triangle shall, (A) promptly prepare and file or cause other requirement of the Commission prompted by act or omission of the Holders of a majority of the Registrable Securities requested to be prepared included therein) and filed (1iii) such additional formsRegistration is closed, amendments, supplements, prospectuses, certificates, letters, opinions and or withdrawn at the request of the Requester (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, Triangle would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely than as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary a material adverse change to apply for listing or to list the Company). The Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the Holders of a majority of the Registrable Securities subject requested to be included therein. If the underwriters for such Demand Registration advise the Company in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such Registration exceeds the number of Registrable Securities and other securities, if any, 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 therein, the Company shall include the number of Registrable Securities which can be so sold in the following order of priority: (a) first, the Registrable Securities requested to be included by the Requester, which in the opinion of such underwriter can be sold in an orderly manner within the price range of such offering, pro rata among them on the Trading Market basis of the number of Registrable Securities requested to be included therein by each such Holder, and (Bb) do any and all second, other acts and things that may securities requested to be reasonably necessary or appropriate or reasonably requested by included therein to 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 thereofextent permitted hereunder.
Appears in 1 contract
Demand Registration. (ia) Any Holder that holds At any Registrable Securities shall have time on or after the option and right, exercisable by delivering a written notice to Triangle date ninety (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of 90) days from the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand NoticeStock Purchase Agreement, Triangle shall give upon written notice of such Demand Notice to all Holders and, as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file Issuer from a Registration Statement covering all Holder or Holders holding a majority in interest of the Registrable Securities that (the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such "Demand Request"), which notice of the Demand Notice given by Triangle requests, pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by 2.1, that the Initiating Holder in accordance with Issuer effect the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective registration under the Securities Act and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held by such requesting Holders, which notice shall specify the Holders providing intended method or methods of disposition of such Demand Notice Registrable Securities, the Issuer shall have become prepare as soon as practicable and, within 20 days after such request, file with the Commission a registration statement with respect to such Registrable Securities and thereafter use all reasonable efforts to cause such registration statement to be declared effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales for purposes of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice dispositions in accordance with the intended timing and method or methods of distribution thereof specified disposition stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their rights to request registration under this Section 2.1(a) on not more than one occasion (such registration being referred to herein as the "Demand NoticeRegistration");
(ii) the method of disposition requested by Holders in connection with any Demand Registrations may not, without the Issuer's written consent, be a Rule 415 Offering;
(iii) the Issuer shall not be required to effect a Demand Registration hereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities; and
(iv) the Issuer shall not be required to effect a Demand Registration hereunder, or to maintain any registration statement filed pursuant hereto effective after the date on which the Holders have met the holding period requirements pursuant to Rule 144.
(ivb) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to this Section 2(a), Triangle 2.1 shall not be required deemed to effect have been effected and, therefore, not requested and the rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, (i) if such Demand Registration has not become effective under the Securities Act or (ii) if such Demand Registration, after it became effective under the Securities Act, was not maintained effective under the Securities Act (other than as a registration result of any stop order, injunction or file other order or requirement of the Commission or other government agency or court solely on the account of a Registration Statement material misrepresentation or omission of a Holder) for at least 30 days (or any amendment such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) (provided that such 30-day period shall be extended for a period such number of up to 60 days, if days that equals the number of days elapsing from (A) the Board determines that a postponement date the written notice contemplated by Section 2.5(e) is in given by the best interest of Triangle and its stockholders generally due Issuer to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable date on which the Issuer delivers to comply with applicable securities laws or (C) the Board determines such registration would require disclosure Holders of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period Registrable Securities the amendment contemplated by Section 2(a)(iv)(B) or any Suspension Period2.5(e)), Triangle as a result thereof, the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement. The Holders shall not engage lose their right to a Demand Registration under Section 2.1 if the Demand Registration related to such Demand Request is delayed or not effected in any transaction involving the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Personcircumstances set forth in this Section 2.1(b), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or in connection with the conversion or exercise of outstanding securities, including the Convertible Note, and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder of registration rights.
(vc) Triangle may include in any such Demand Registration other Triangle Securities The Issuer shall have the right to cause the registration of additional equity securities for sale for its own account or for the account of any other Person; the Issuer in the registration of Registrable Securities requested by the Holders pursuant to Section 2.1(a), provided that if such Holders are advised in writing (with a copy to the Issuer) by the lead or managing underwriterunderwriter referred to in Section 2.2 that, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed to be offered in such offering underwriter's good faith view, all or a part of such Registrable Securities and additional equity securities cannot be sold and the inclusion of such Registrable Securities and additional equity securities in such registration would be likely to have an adverse effect in any material respect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated, then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering shall be allocated first, to the Registrable Securities proposed to be included in the Demand Registration by the Holders and second, to the securities of the Issuer proposed to be included in such offering, registration by the Issuer for sale for its own account. The Holders of the Registrable Securities to be sold offered pursuant to paragraph (a) above may require that any such additional equity securities be included by the Issuer in the offering proposed by such Holders shall be on the same conditions as the Registrable Securities that are included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Persontherein.
(vid) Subject to the limitations contained in this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle becomes, and is at the time of its receipt Within seven days after delivery of a Demand Notice, Request by a WKSIHolder, the Demand Registration for any offering and selling of Registrable Securities Issuer 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 Triangle); provided, however, that if at any time provide a Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends each Holder, advising such Holder of its right to effect an offering of include all or part of the Registrable Securities included on held by such Holder for sale pursuant to the Demand Registration Statement, Triangle will amend or supplement and advising such Registration Statement as may be necessary in order Holder of procedures to enable such offering Holder to take place.
(vii) Without limiting Section 3, elect to so include Registrable Securities for sale in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), Triangle 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. Any Holder may, including under the securities laws within twenty days of delivery to such states as the Holders shall reasonably request; providedHolder of a notice pursuant to this Section 2.2(d), however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle would become subject elect 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 so include Registrable Securities subject to in such Demand Registration on by written notice to such effect to the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by Issuer specifying the Holders to enable the Holders to consummate a public sale number of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofdesired to be so included by such Holder.
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Demand Registration. In addition to the registration obligations of the Company set forth in Section 2.2 herein, the following provisions shall apply:
(ia) Any Holder Subject to Section 2.3(g), upon the written request of FMA requesting that holds any the Company effect the registration under the Securities Act of Registrable Securities shall have constituting at least 10% of the option Registrable Securities held by the Investors as of date hereof and right, exercisable by delivering a written notice to Triangle specifying the intended method of disposition thereof (a the “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), the Company will use its reasonable best efforts to require Triangle 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 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 Initiating Holder intends to include in such Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Triangle be required to effectuate a Demand Registration for Registrable Securities having an aggregate value of less than $30 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five Business Days of the receipt of the Demand Notice, Triangle shall give written notice of such Demand Notice to all Holders and, SEC as soon as reasonably practicable thereafter, shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to Triangle within three days of receipt of such notice of following the Demand Notice given by Triangle pursuant to this Section 2(a)(ii)) to be included (but in such Demand Registration as promptly as practicable as directed by no event later than the Initiating Holder in accordance with the terms and conditions of date that is 90 days after the Demand Notice and Notice) a Registration Statement. The Company shall use all commercially its reasonable best efforts to cause such Registration Statement to become be declared effective under by the Securities Act and remain effective under SEC within 90 days after the Securities Act until all Registrable Securities covered by initial filing of the Registration Statement. The Company shall include in such Registration Statement have been sold (the “Effectiveness Period”).Statement:
(iiii) Subject to the other limitations contained in this Agreement, Triangle is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of five 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 held which the Company has been so requested to be registered by the Holders providing such Demand Notice shall have become effective under the 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 on the terms and conditions specified in the Demand Notice FMA for disposition in accordance with the intended timing and method or methods of distribution thereof specified disposition stated in the Demand Notice.such request; and
(iv) Notwithstanding any other provision of this Section 2(a), Triangle shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) for a period of up to 60 days, if (A) the Board determines that a postponement is in the best interest of Triangle and its stockholders generally due to a pending transaction involving Triangle, (B) the Board determines such registration would render Triangle unable to comply with applicable securities laws or (C) the Board determines such registration would require disclosure of material information that Triangle has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (i) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 120 days in any 12 month period, (ii) during any Blackout Period contemplated by Section 2(a)(iv)(B) all shares of Common Stock which the Company or any Suspension Period, Triangle shall not engage in any transaction involving Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the offer, issuance, sale, or purchase of Triangle Securities (whether for the benefit of Triangle or a third Person), except transactions involving the issuance or purchase of Triangle Securities as contemplated by Triangle employee benefit plans or employee or director arrangements or Company may elect to register in connection with the conversion or exercise offering of outstanding securities, including Registrable Securities pursuant to this Section 2.3; all to the Convertible Note, extent requisite to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities and (iii) during any Blackout Period contemplated by Section 2(a)(iv)(B) or (C) or any Suspension Period, Triangle shall not file a registration statement (or any amendment or supplement thereto) for any other holder the additional shares of registration rights.
(v) Triangle may include in any such Demand Registration other Triangle Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriterCommon Stock, if any, for the Underwritten Offering determines that the type or number of Triangle Securities proposed so to be offered in such offering would likely have an adverse registered; provided, that, the provisions of this Section 2.3 shall not require the Company to effect more than one registration of Registrable Securities in any material respect on the price, timing or distribution of the Registrable Securities proposed to be included in such offering, the Registrable Securities to be sold by the Holders shall be included in such registration before any Triangle Securities proposed to be sold for the account of Triangle or any other Personcalendar year.
(vib) Subject to the limitations contained in The registrations under this Agreement, Triangle shall effect any Demand Registration on Form S-3 (except if Triangle is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if Triangle 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 shall be effected pursuant to an Automatic Shelf Registration Statement, which Section 2.3 shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to Triangle); provided, however, that if at any time a an appropriate Registration Statement on Form S-3 is effective and a Holder provides written notice to Triangle that it intends to effect an offering of all or part of permits the Registrable Securities included on such Registration Statement, Triangle 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 Registration pursuant to and in accordance with this Section 2(a), Triangle 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 states as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Triangle 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 disposition of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereofspecified by FMA or the Investors in their request for registration. The Company agrees to include in any such Registration Statement all information which FMA or any Investor shall reasonably request to effect the registration; provided that such information must be (i) responsive to the requirements of the applicable form and (ii) appropriate for inclusion in the Registration Statement.
(c) A registration requested pursuant to this Section 2.3 shall not be deemed to have been effected (i) unless a Registration Statement with respect thereto has become effective; provided, that a Registration Statement which does not become effective after the Company has filed a Registration Statement with respect thereto solely by reason of the refusal to proceed of FMA or any Investor (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 FMA or any Investor shall be deemed to have been effected by the Company at the request of FMA unless FMA or an Investor 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) if, after it has become effective, such registration is withdrawn by the Company (other than at the request of FMA) 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 Statement’s effectiveness, or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied, other than due solely to some act or omission by FMA or any Investor electing to have Registrable Securities registered pursuant to such Registration Statement.
(d) If a requested registration pursuant to this Section 2.3 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (with a copy to FMA and each Investor) that, in its opinion, 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 within a price range reasonably acceptable to the Company and to the holders of a majority (by number of shares) of the Registrable Securities requested to be included in such Registration Statement, the Company will include in such registration, to the extent of the number which the Company is so advised can be sold in such offering, (i) first, the Registrable Securities which have been requested to be included in such registration by any Investor pursuant to this Agreement , (ii) second, provided that no securities sought to be included by any Investor have been excluded from such registration, the securities of other Persons entitled to exercise “piggy-back” registration rights pursuant to contractual commitments of the Company (pro rata based on the amount of securities sought to be registered by such Persons) and (iii) third, securities the Company proposes to register.
(e) The Company shall use its reasonable best efforts to keep any Registration Statement filed pursuant to this Section 2.3 continuously effective (i) for a period of two years after the Registration Statement first becomes effective, plus the number of days during which such Registration Statement was not effective or usable pursuant to Sections 2.6(e) or 2.6(i); or (ii) if such Registration Statement related to an underwritten offering, for such period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer. In the event the Company shall give any notice pursuant to Sections 2.6(e) or (i), the additional time period mentioned in Section 2.3(f)(i) during which the Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Sections 2.6(e) or (i) to and including the date when each seller of a Registrable Security covered by the Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Sections 2.6(e) or (i).
(f) The Company shall have the right at any time, to suspend the filing of a Registration Statement under this Section 2.3 or require that the Investors suspend further open market offers and sales of Registrable Securities pursuant to a Registration Statement filed hereunder for a period not to exceed an aggregate of 30 days in any six month period or an aggregate of 60 days in any twelve-month period for valid business reasons (not including avoidance of their obligations hereunder) (i) to avoid premature public disclosure of a pending corporate transaction, including pending acquisitions or divestitures of assets, mergers and combinations and similar events; (ii) upon the occurrence of any of the events specified in Section 2.6(e), until the time that the Investors receive copies of a supplement or amendment to the prospectus included in the applicable Registration Statement as contemplated in Section 2.6(e); and (iii) upon the occurrence of any of the events specified in Section 2.6(i), until the time the Company notifies the Investors in writing that such suspension is no longer effective.
(g) The right of the Investors to register Registrable Securities pursuant to this Section 2.3 is only exercisable if the Registrable Securities were not included in the Registration Statement contemplated by Section 2.2 or such Registration Statement otherwise becomes unusable (other than due solely to some act or omission by the Investors electing to have Registrable Securities registered pursuant to such Registration Statement) or ineffective and the Company is not able to correct the misstatements, have the applicable stop order rescinded or otherwise restore the effectiveness of the Registration Statement as contemplated by this Agreement.
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