Demand Registration. (A) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available. (B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement. (C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d). (D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 5 contracts
Sources: Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Anchorage Capital Group, L.L.C.)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at At any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all following the six month anniversary of the Investor’s Registrable Securities is or are not existing and effectivedate of this Agreement, the Holder Representative may request that the Company register, Parent register under and in accordance with the provisions of the Securities Act, Act all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date Stock on which the Company receives Form S-3 or such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a other short-form registration statement on under the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable Securities Act then available to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice Parent (a “Demand Registration StatementRegistration”), including a shelf registration statement providing for the resale from time to time of any and all Registrable Stock pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Promptly after receipt of any request for Demand Registration, Parent shall deliver written notice of such request to all other holders of Registrable Stock and such holders shall have ten (10) Business Days from the date of such notice to notify Parent in writing of their desire to include Registrable Stock in such Demand Registration. Parent shall use commercially reasonable efforts to cause the registration statement with respect to such Demand Registration to become effective under the Securities Act as soon as reasonably practicable, except to the extent such registration statement is already effective. Parent shall not be required to effect a Demand Registration more than three (3) times (and no more than two (2) times in any twelve (12) month period) for the holders of Registrable Stock as a group; provided, that a Demand Registration shall not be deemed to have been effected unless (i) it has become effective under the Securities Act, (ii) it has remained effective for the period set forth in Section 4.3(b), and (iii) the offering of Registrable Stock pursuant to such Demand Registration is not subject to any stop order, injunction or other order or requirement of the SEC (other than any such stop order, injunction, or other requirement of the SEC prompted by any act or omission of holders of Registrable Stock).
(b) If the Investor registering Registrable Securities Holder intends to distribute any the Registrable Securities Stock covered by the Demand Registration request by means of an underwritten offering, it shall promptly so advise Parent as part of its request for Demand Registration, and Parent shall include such information in its notice to the Company other holders of Registrable Stock. In such event, the holders of a majority of the Registrable Stock initially requesting the Demand Registration shall select the managing underwriter of such offering; provided, that such selection shall be subject to Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(c) Notwithstanding any provision of this Agreement to the contrary:
(i) Except as provided in Section 4.9(a) with respect to a Take Down Notice, Parent shall not be required to effect a Demand Registration within (A) 90 days following the latest of the effective date of a registration statement or the date of the filing of a prospectus or prospectus supplement pertaining to a public offering of securities for the account of Parent or (B) six months following the latest of the effective date of a registration statement or the date of the filing of a prospectus or prospectus supplement pertaining to (x) a previous Demand Registration or (y) a previous Piggyback Registration in which holders of Registrable Stock sold at least 80% of the shares of Registrable Stock requested to be included therein;
(ii) if the Board determines in good faith that it would (A) materially adversely affect Parent’s ability to pursue or consummate a proposed or pending acquisition, disposition, strategic alliance, financing transaction or other material event involving Parent, (B) require the premature disclosure of material non-public information, or (C) prevent Parent from complying with the Securities Act or Exchange Act, Parent may (1) postpone the filing or effectiveness of any registration pursuant to this Section 4.1 and (2) suspend the rights of any holder of Registrable Stock to use any prospectus with respect to an effective Demand Registration, in each case for a period of no more than 45 days; provided, that such right to postpone or suspend a registration pursuant to this Section 4.1(c)(ii) shall be exercised by Parent (a) only if Parent has generally exercised (or is concurrently exercising) similar black-out rights (if any) against holders of similar securities that have registration rights and (b) not more than two (2) times in any twelve (12) month period and not more than 90 days in the aggregate in any twelve (12) month period; provided, further, that in the event Parent gives such notice, Parent shall extend the period during which such registration statement shall be maintained effective as provided in Section 4.3(b) by the number of days by which Parent suspends such registration statement;
(iii) Parent shall not be obligated to cause any audit to be undertaken in connection with any such registration that Parent is not otherwise required to undertake at that time in connection with its obligations under the Securities Act, the Exchange Act and the Company rules and regulations thereunder; and
(iv) Parent may satisfy its obligations to effect a Demand Registration by filing one or more prospectus supplements to a registration statement previously filed and that has become effective under the Securities Act that permits Parent to register resales of Parent Common Stock by naming in such prospectus supplement the selling stockholders of such Parent Common Stock.
(d) Parent shall take all reasonable steps to facilitate not include in any Demand Registration any securities that are not Registrable Stock without the prior written consent of the holders of a majority of the Registrable Stock initially requesting such distributionDemand Registration (which consent shall not be unreasonably withheld, including the actions required pursuant to Section 3.12(cconditioned or delayed). The If a Demand Registration involves an underwritten offering and the managing underwriters underwriter advises Parent that in any its opinion the number of shares of Registrable Stock (and, if permitted hereunder, other securities requested to be included in such distribution shall offering), exceeds the number of securities that can be acceptable sold in such underwritten offering without adversely affecting the marketability or the price per share of the Registrable Stock proposed to the Investor registering Registrable Securities be sold in such underwritten offering. Any , Parent shall include in such Demand Registration Statement may(i) first, at the request number of shares of Parent Common Stock that the Holders submitting holders of Registrable Stock propose to sell, and (ii) second, the Demand Notice, number of securities proposed to be a “shelf” registration pursuant included therein by any other Persons (including securities to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable be sold for the resale account of Parent and/or other holders of Parent Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from Stock proposed to be sold can be included in such offering, then the date on which the SEC declares Registrable Stock that is included in such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement offering shall be extended by allocated pro rata among the aggregate respective holders thereof on the basis of the number of days shares of all suspension periods pursuant to Section 3.12(d) occurring with respect to Registrable Stock held by each such Demand Registration Statementholder.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 4 contracts
Sources: Merger Agreement, Investor Rights Agreement (Fleetcor Technologies Inc), Investor Rights Agreement (Ceridian LLC)
Demand Registration. At any time after the end of the Lock-Up Period and at which time the shelf registration statement required pursuant to Section 5.1 shall not be available for the resale of the Registrable Securities or an Underwritten Offering, including if for any reason the Company shall be ineligible to maintain or use a shelf registration statement, the Company shall, as promptly as reasonably practicable following the written request of the Stockholder or its Subsidiary for registration under the Securities Act of all or part of the Registrable Securities (A) The Investor shall have the right, by written notice (the a “Demand NoticeRequest”), file a registration statement with the SEC (a “Demand Registration Statement”) given with respect to resales of the Registrable Securities pursuant to the CompanyStockholder’s or its Subsidiary’s intended method of distribution thereof or an Underwritten Offering with anticipated aggregate gross proceeds for at least $50 million, and shall, subject to the terms of this Article V, use its reasonable best efforts to cause such Demand Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof; provided that such Demand Registration Statement shall be filed on (i) Form S-3, if the Company is then S-3 Eligible, or (ii) any other appropriate form under the Securities Act for the type of offering contemplated by the Stockholder or its Subsidiary, if the Company is not then S-3 Eligible, and provided further, that, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, extent that the Company registerStockholder or any of its Subsidiaries would, in the Company’s reasonable determination, be deemed to be an “underwriter” for purposes of Section 11 under and in accordance with the provisions of the Securities Act, all or any portion registration statement under this Section 5.2 shall include disclosure to such effect and any other information deemed reasonably necessary by the Company to comply with the rules and regulations of the SEC in connection therewith, it being understood that the Company shall only be required to register such amount of Registrable Securities as it reasonably determines would be permitted in accordance with such rules and regulations. Each Demand Request shall specify the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)be registered, the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SECtheir aggregate amount, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which thereof. The Stockholder agrees to provide the Company with such information in connection with a Demand Request as may be by an underwritten offering), of the total number of Registrable Securities specified reasonably requested by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableRequest.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 4 contracts
Sources: Stockholder's Agreement (Horton D R Inc /De/), Stockholder Agreement (Horton D R Inc /De/), Stockholder's Agreement (Forestar Group Inc.)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to requestIf, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all commencing six (6) months after the date of consummation of the Investor’s Registrable Securities is or are not existing and effectiveInitial Public Offering, the Company shall receive a written request from Oak Hill (the “Requesting Stockholder”) that the Company register, effect the registration under and in accordance with the provisions of the Securities Act, Act of all or any portion of such Requesting Stockholder’s Registrable Securities (which shall be effected by a shelf registration if so requested by the Requesting Stockholder), and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least fifteen (15) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the Other Stockholders holding Registrable Securities and thereupon shall use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholder has requested registration under this Section 1.01.
(ii) subject to the restrictions set forth in Sections 1.01(f) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any Stockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities designated so to be registered.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Investor. Upon receipt Company revoking such request.
(c) Oak Hill shall have an unlimited number of Demand Registrations.
(d) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(e) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Notice from Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the Investor pursuant SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(f) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to this Section 3.12(a)(iibe included in such registration are included.
(f) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include 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 Company Securities can be sold (the “Maximum Offering Size”), the Company shall promptly include in such registration, in the priority listed below, up to the Maximum Offering Size:
(and in any event within thirty i) first, all Registrable Securities requested to be registered by the Registering Stockholders (30) days allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Registering Stockholders on the basis of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total relative number of Registrable Securities specified so requested to be included in such registration by each); and
(ii) second, all Registrable Securities proposed to be registered by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableCompany.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 4 contracts
Sources: Registration Rights Agreement (Dave & Buster's Entertainment, Inc.), Registration Rights Agreement (Dave & Buster's Entertainment, Inc.), Registration Rights Agreement (Dave & Buster's Entertainment, Inc.)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to requestIf, at any time and from during the time to time during such periods when a after the Closing Date, the Shelf Registration Statement is not effective or Shelf Registration Statements covering otherwise available, the Investor may request in a written notice to the Company (the “Request”) that the Company effect the registration under the Securities Act of some or all of the Investor’s Registrable Securities is or are not existing and effectivethen owned by the Investor; provided, however, that the Company registerwill not be required to effect more than one registration pursuant to this Section. Following the receipt of a Request, the Company shall, subject to the limitations of this Section 3, use its commercially reasonable efforts to effect, as soon as practicable, the registration under and in accordance with the provisions of the Securities Act, Act of all or any portion of Registrable Securities that the Investor requests to be registered.
(b) If the Investor intends to distribute the Registrable Securities designated covered by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities request by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required as a part of its request made pursuant to this Section 3.12(c)3. The managing underwriters in any In such distribution shall be acceptable to event, the right of the Investor registering to include its Registrable Securities in such registration shall be conditioned upon the Investor’s participation in such underwriting and the inclusion of Registrable Securities in the underwriting to the extent provided herein. The Investor shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Investor (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten offering(including Registrable Securities), then the Company shall so advise the Investor,; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration will not be reduced unless all other securities of the Company that are entitled by contract or otherwise to be included therein are first entirely excluded from such underwriting and registration. Any Demand Registration Statement may, at Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableregistration.
(Bc) The Notwithstanding the foregoing, the Company shall use reasonable best efforts to keep each Demand Registration Statement filed may postpone having a registration statement pursuant to this Section 3.12(a)(ii3 declared effective for a reasonable period not to exceed thirty (30) continuously effective and usable for consecutive trading days if the resale Board of Directors of the Registrable Securities covered thereby for a period Company shall have determined in good faith because of one hundred eighty valid business reasons (180) days from not including avoidance of the date on which Company’s obligations hereunder), including without limitation the SEC declares such Demand Registration Statement effectiveacquisition or divestiture of assets, as such period may be extended pursuant capital raising activities, pending corporate developments and similar events, that postponing effectiveness is in the best interests of the Company, and prior to this Section 3.12(a)(ii)(B). The time period for which postponing the effectiveness the Company is required provides the Investor with written notice of such postponement, which notice need not specify the nature of the event giving rise to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementpostponement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 4 contracts
Sources: Registration Rights Agreement (Waste Services, Inc.), Registration Rights Agreement (Waste Services, Inc.), Registration Rights Agreement (Prides Capital Partners, LLC)
Demand Registration. 2.1 So long as the Manager holds Registrable Shares or can be reasonably foreseen to acquire Registrable Shares pursuant to future Management Fee Investments that have not been previously registered pursuant hereto, the Company agrees, upon request of the Manager, to use its best efforts to either (Aa) The Investor shall have if there is no Automatically Effective Shelf, file one or more Shelf Registration Statements (which may include Registrable Shares covered by a prior Shelf Registration Statement) providing for the rightregistration, and the sale on a continuous or delayed basis (including through brokers and dealers) by written notice the Manager, of all such Registrable Shares, pursuant to Rule 415 or any similar rule that may be adopted by the Commission or (the b) if there is an Automatically Effective Shelf, file one or more prospectus supplements (each, a “Demand NoticeProspectus Supplement”) given with the Commission for the sale and distribution of all or such portion of the Manager’s Registrable Shares as are specified in such request; provided, however, that the Company shall not be obligated to file more than four (4) such Shelf Registration Statements or Prospectus Supplements in any twelve-month period. Each such request from the CompanyManager shall indicate whether the Manager wishes to sell the Registrable Shares pursuant to an underwritten offering. The Manager shall be named as a selling security holder in such Shelf Registration Statement or Prospectus Supplement, in such a manner as to requestpermit the Manager to deliver such Shelf Registration Statement or Prospectus Supplement to purchasers of Registrable Shares in accordance with applicable law.
2.2 The Company further agrees that it shall cause each Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of such Shelf Registration Statement or the date of any such amendment or supplement, and each Prospectus Supplement, as of the date of such Prospectus Supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act; and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in light of the circumstances under which they were made) not misleading. If any Shelf Registration Statement, as amended or supplemented from time to time, ceases to be effective for any reason at any time and from time during an Effective Period (other than because all Registrable Shares registered thereunder shall have been sold pursuant thereto or shall have otherwise ceased to time during such periods when be Registrable Shares), the Company shall use its best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof.
2.3 The Manager agrees that if it wishes to sell Registrable Shares pursuant to a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effectiveProspectus Supplement, that the Company register, under and it will do so only in accordance with the provisions this Section 2.3. The Manager agrees to deliver a Notice and Questionnaire, a form of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant which is attached as Schedule 1 to this Section 3.12(a)(iiAgreement (the “Notice and Questionnaire”), to the Company shall promptly at least ten (and in any event within thirty (3010) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable Business Days prior to the Investor registering Registrable Securities in accordance with the intended method or methods filing of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Shelf Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableor Prospectus Supplement.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 4 contracts
Sources: Registration Rights Agreement (Macquarie Infrastructure Holdings, LLC), Registration Rights Agreement (Macquarie Infrastructure Holdings, LLC), Registration Rights Agreement (Macquarie Infrastructure Co LLC)
Demand Registration. Upon the written request (A) The Investor shall have the right, by written notice (the a “Demand Notice”) given to by the CompanyHolder, to requestthe 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 any time and the option of the Holder, 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 during such periods when by the Holder (a “Shelf Registration Statement”)). The Company shall use its commercially reasonable efforts to cause each Registration Statement or Shelf Registration Statements covering all to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Investor’s Registrable Securities is or are not existing and effective, that Registration Statement. Any Registration Statement shall provide for the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor resale pursuant to this Section 3.12(a)(ii)any method or combination of methods legally available to, and requested by, the Holder. To the extent the initial Registration Statement is not made on Form S-3, the Company shall promptly (shall, upon becoming eligible to file a registration statement on Form S-3, prepare and in any event within thirty (30) days of file a new Registration Statement on Form S-3 to replace the date on which the Company receives such Demand Notice) file with the SEC, initial Registration Statement and the Company shall thereafter use its best efforts to cause such subsequent Registration Statement to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and Commission as shall be soon as reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”)practicable thereafter. If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use its commercially reasonable best efforts to keep cause each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) 2.1 to be continuously effective effective, supplemented and usable amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holder until all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Securities 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. The Holder shall be limited to two demand registrations under this Section 2.1 in any twelve-month period (provided, however, that there shall be no limit on the number of Shelf Registration Statements that may be required by the Holder hereunder), and the Company shall not be obligated to file more than one Registration Statement within 120 days after the effective date of any Registration Statement filed by the Company; provided, further, that no demand registration under this Section 2.1 shall be deemed to have occurred for purposes of this sentence if the Registration Statement relating thereto (a) does not become effective within 180 days of the date first filed with the Commission, (b) is not maintained effective for the Effectiveness Period required under this Section 2.1 or (c) the offering of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares pursuant to such Demand Registration Statement effectiveis subject to a stop order, as injunction, or similar order or requirement of the Commission during such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementperiod.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 4 contracts
Sources: Registration Rights Agreement (Biovie Inc.), Registration Rights Agreement (Acuitas Group Holdings, LLC), Registration Rights Agreement (Biovie Inc.)
Demand Registration. (Aa) The Investor shall have At any time after the rightearlier of 180 days after the IPO or five (5) years after the date of this Agreement, by written notice holders of a majority of the Registrable Securities then outstanding may request (the “Demand NoticeRegistration Request”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, registration under and in accordance with the provisions of the Securities Act, Act of all or any portion of the their Registrable Securities designated by pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each Registration Request for a Long-Form Registration shall specify the Investornumber of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)any such Registration Request, the Company shall promptly (but in no event later than 15 days following receipt thereof) deliver notice of such Registration Request to all other holders of Registrable Securities who shall then have 15 days from the date such notice is given to notify the Company in writing of 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-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in any event such Long-Form Registration within thirty (30) 90 days of after the date on which the Registration Request is given (the “Long-Form Filing Deadline”) and shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter (but, in the case of any such Long-Form Registration filed after the IPO only, in no event later than the 45th calendar day following the date on which such Long-Form Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the Commission, the 90th calendar day following the date such Long-Form Registration Statement is required to be filed hereunder) (the “Post-IPO Long-Form Effectiveness Deadline”)). The Company receives shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group.
(b) After an IPO, the Company shall use its commercially reasonable 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. 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 deliver a Registration Request to request 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, together with each Long-Form Registration, a “Demand Registration”). Each Registration Request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than 15 days following receipt thereof) deliver notice of such Registration Request to all other holders of Registrable Securities who shall then have 15 days from the date such notice is given to notify the Company in writing of 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 thereof have requested to be included in such Short-Form Registration within 30 days after the date on which the Registration Request (the “Short-Form Filing Deadline” and, together with the Long-Form Filing Deadline, the “Filing Deadlines”) is given and shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter but in no event later than the 45th calendar day following the date on which such Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the Commission, the 90th calendar day following the date such additional Registration Statement is required to be filed hereunder) (the “Short-Form Effectiveness Deadline” and, together with the Post-IPO Long-Form Effectiveness Deadline, the “Effectiveness Deadlines”). The Company shall not be required to effect a Short-Form Registration more than two (2) times for the holders of Registrable Securities as a group.
(c) If a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement (A) is not filed with the Commission on or before the applicable Filing Deadline for such Registration Statement (a “Filing Failure”) (it being understood that if the Company files a Registration Statement without affording one counsel selected by holders of a majority of such Registrable Securities the opportunity to review and comment on the same, the Company shall be deemed to not have satisfied this clause (A) and such event shall be deemed to be a Filing Failure) or (B) is not declared effective by the SEC on or before the applicable Effectiveness Deadline for such Registration Statement (an “Effectiveness Failure”) (it being understood that if on the second Business Day immediately following the effective date for such Registration Statement the Company shall not have filed a “final” prospectus for such Registration Statement with the Commission under Rule 424(b) (whether or not such a prospectus is technically required by such rule), the Company shall be deemed to not have satisfied this clause (B) and such event shall be deemed to be an Effectiveness Failure), or (C) on any day after the effective date of a Registration Statement, sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a suspension or delisting of (or a failure to timely list) the Common Equity on the then principal market for such Common Equity or any other limitations imposed by the principal market for the Common Equity, or a failure to register a sufficient number of Common Equity or by reason of a stop order) or the prospectus contained therein is not available for use for any reason, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be consecutive calendar days) during any 12-month period (a “Maintenance Failure”; and each of a Filing Failure, an Effectiveness Failure and a Maintenance Failure being referred to as a “Registration Default”), then, as partial relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell its Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity, including, without limitation, specific performance), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1%) of the aggregate purchase price paid by the Investor with respect to the Registrable Securities required to be included in such Registration Statement (1) on the date of such Filing Failure, Effectiveness Failure, or Maintenance Failure as applicable; (2) on every thirty (30) day anniversary of (I) a Filing Failure until such Filing Failure is cured or (II) an Effectiveness Failure until such Effectiveness Failure is cured or (III) a Maintenance Failure until such Maintenance Failure is cured. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, if an event or failure giving rise to the Registration Delay Payments is cured prior to any thirty (30) day anniversary of such event or failure, then such Registration Delay Payment shall be made on the third (3rd) Business Day after such cure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to an Investor with respect to any period during which all of such Investor’s Registrable Securities may be sold by such Investor without restriction under Rule 144 (including, without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1). In addition, notwithstanding the foregoing, a Registration Default shall be deemed not to have occurred and be continuing, and no Registration Delay Payments shall accrue as a result thereof, in relation to a Registration Statement if (i) (A) such Registration Default has occurred solely as a result of material events, with respect to the Company that would need to be described in such Registration Statement or the related Prospectus, and the Company is proceeding promptly and in good faith to amend or supplement the Registration Statement to describe such material events or (B) the Registration Default relates to any information supplied or failed to be supplied by a holder of Registrable Securities.
(d) The Company shall not be obligated to effect any Long-Form Registration within 180 days after the effective date of a previous Long-Form Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually included such Registrable Securities for registration thereunder and sold all of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to 180 days the filing or effectiveness of a Registration Statement for a Demand Registration or the filing of a supplement for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand NoticeRegistration or Shelf Takedown would (i) file materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the SECCompany; (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 (each, a “Grace Period Event”); provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration 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; provided, further that a Registration Default shall be deemed not to have occurred and be continuing, and no Registration Delay Payments shall accrue as a result thereof, in relation to a Registration Statement during the period that the Grace Period Event or its effect is continuing (up to a maximum 180-day allowable grace period). The Company may delay a Demand Registration or ▇▇▇▇▇ Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown 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), Section 2(b) or Section 2(c), and the Company shall thereafter use include such information in its best efforts notice to cause the other holders of Registrable Securities. The holders of a majority of the Registrable Securities initially requesting the Demand Registration or Shelf Takedown shall select the investment banking firm or firms to be declared effective act as promptly as practicablethe managing underwriter or underwriters in connection with such offering; provided, a registration statement on the appropriate form for the registration and sale as that such selection shall be selected by subject to the consent of the Company, which consent shall not be unreasonably withheld or delayed.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and as shall be reasonably acceptable to the Investor registering holders of Registrable Securities in accordance with writing that in its reasonable and good faith opinion the intended method number of units or methods shares of distribution (which may Common Equity proposed to be by an included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other units or shares of Common Equity proposed to be included in such underwritten offering), exceeds the number of units or shares of Common Equity which can be sold in such underwritten offering and/or the number of units or shares of Common Equity proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the total Common Equity proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the units or shares of Common Equity that the holders of Registrable Securities propose to sell, and (ii) second, the units or shares of Common Equity proposed to be included therein by any other Persons (including units or shares of Common Equity to be sold for the account of the Company and/or other holders of Common Equity) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities specified owned by the Holders in each such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableholder.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 3 contracts
Sources: Registration Rights Agreement (ASP Isotopes Inc.), Registration Rights Agreement (ASP Isotopes Inc.), Registration Rights Agreement (ASP Isotopes Inc.)
Demand Registration. (A) The Investor A. CapGen shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the InvestorCapGen’s Registrable Securities is or are not existing and effective, that the Company register, register under and in accordance with the provisions of the Securities Act, Act all or any portion of the Registrable Securities designated by the InvestorCapGen. Upon receipt of a Demand Notice pursuant to the corresponding provisions of the Anchor Investment Agreement or from the Investor CapGen pursuant to this Section 3.12(a)(ii)3.14, the Company shall promptly (and in any event within thirty ten (3010) Business Days from the date of receipt of such Demand Notice), notify CapGen or the Anchor Investors of the receipt of such Demand Notice and allow such other Persons in the proposed registration by submitting their own Demand Notice(s). The Company, within 45 days of the date on which the Company receives such earlier Demand Notice) , shall file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to CapGen and the Investor Anchor Investors having given Demand Notice registering Registrable Securities Securities, in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities CapGen intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c3.14(c). The managing underwriters in any such distribution of Registrable Securities being sold only by CapGen shall be selected by CapGen. Otherwise, the underwriters shall be mutually acceptable to CapGen and the Investor registering Anchor Investors who propose to sell Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) B. The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii3.14(a)(2) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B3.14(a)(2)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d3.14(d) occurring with respect to such Demand Registration Statement.
(C) C. The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii3.14(a)(2) under the circumstances set forth in Section 3.12(d3.14(d).
(D) D. For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii3.14(a)(2) shall not be exercisable until the Effectiveness Deadline.
Appears in 3 contracts
Sources: Investment Agreement (Hampton Roads Bankshares Inc), Investment Agreement (Hampton Roads Bankshares Inc), Investment Agreement (Hampton Roads Bankshares Inc)
Demand Registration. (Ai) The Investor At any 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 the Company (the a “Demand Notice”) given ), to require the Company to, pursuant to the Companyterms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to requestRule 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(s) intend to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Initiating Holder(s) and their respective Affiliates to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at any time and from time to time during such periods when least $50 million (the “Minimum Amount”).
(ii) Within five Business Days (or if the Registration Statement will be a Shelf Registration Statement or relates to an Overnight Underwritten Offering or “bought deal,” within two Business Days) after the receipt of a Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 60 Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within 45 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of, and the intended timing and method of disposition described in, the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)). The Company will use commercially reasonable efforts to cause such Registration Statement to become and remain effective as soon as reasonably practicable after the filing thereof under the Securities Act until the earlier of (A) 180 days (or three years if a Shelf Registration Statements Statement is requested) after the Effective Date of such Registration Statement or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold or otherwise disposed of or such Shares are no longer Registrable Securities (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, the Company is not obligated hereunder to (A) file any Registration Statement pursuant to a Demand Registration within 90 days after the closing of a Requested Underwritten Offering, unless as a result of Section 2(d), the Requested Underwritten Offering includes less than (the “Requested Underwritten Offering Minimum Condition”) the lesser of (1) 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 (2) two-thirds of the number of Registrable Securities the Initiating Holder(s) set forth in the applicable Underwritten Offering Notice, or (B) effect a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Investor’s Registrable Securities held by the Initiating Holder(s) shall have become and remains effective under the Securities Act and is or are not existing sufficient to permit offers and effective, that sales of the Company register, under number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the provisions intended timing and method or methods of distribution thereof specified in the Securities ActDemand 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) A Holder may withdraw all or any portion of the its Registrable Securities designated by included in a Demand Registration from such Demand Registration at any time prior to the Investoreffectiveness of the applicable Registration Statement. Upon receipt of a Demand Notice notice from an Initiating Holder that such Initiating Holder is withdrawing all of its Registrable Securities from the Investor pursuant Demand Registration or a notice from a Holder to this Section 3.12(a)(ii)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 promptly cease all efforts to secure effectiveness of the applicable Registration Statement. Such registration nonetheless shall be deemed a Demand Registration with respect to an Initiating Holder for purposes of Section 2(a)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities such Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any event within thirty (30) days of the date on which the Company receives such Demand NoticeRegistration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(d).
(vi) file with Subject to the SEClimitations contained in this Agreement, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a effect any Demand Registration on such appropriate registration statement on form of the appropriate form for the registration and sale Commission (A) as shall be selected by the Company and (B) as shall be reasonably acceptable to permit the Investor registering disposition of the Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering)disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the total number Demand Registration for any offering and selling of Registrable Securities specified shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders in to enable the Holders to consummate a public sale of such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand 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 mayand such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Holders submitting the Demand Notice, Company shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415such 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, if available.
Affiliates of the Holder or transferees of the Holder or (B) The the Company shall use reasonable best efforts to keep each Demand has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for Statement, other than the resale Holder, Affiliates of the Registrable Securities covered thereby for a period Holder or transferees of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementHolder.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 3 contracts
Sources: Registration Rights Agreement (Atlas Energy Solutions Inc.), Registration Rights Agreement (Atlas Energy Solutions Inc.), Registration Rights Agreement (Atlas Energy Solutions Inc.)
Demand Registration. (Ai) The Investor In connection with and following the issuance of the Purchased Securities pursuant to the Purchase Agreement, the Holder that holds Registrable Securities shall have the option and right, exercisable by delivering a written notice to the Company (the a “Demand Notice”) given ), to require the Company to, pursuant to the Companyterms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to request, at any time and from time Rule 415 pursuant to time during such periods when a Shelf Registration Statement (a “Demand Registration”); provided, however, that in no event shall any eligible Holder be entitled to exercise more than two Demand Registrations for its Registrable Securities. The Demand Notice must set forth the name and address of the Initiating Holder, the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration for Registrable Securities representing an Equity Percentage of less than 5% (the “Minimum Amount”).
(ii) Within five Business Days of the receipt of the Demand Notice, the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities to be included in the Demand Registration. The Company shall use commercially reasonable best efforts to cause such Registration Statement to be declared and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statements 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 Holder is required to 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 or an underwriters’ lock-up agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 180 days of the closing of any Underwritten Offering or such longer period of time as may be set in the underwriters’ lock-up agreement for the Underwritten Offering (provided such Underwritten Offering is completed), (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Investor’s Registrable Securities held by the Holder providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is or are not existing sufficient to permit offers and effective, that sales of the Company register, under number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the provisions intended timing and method or methods of distribution thereof specified in the Demand Notice or (C) more than one Demand Registration or Underwritten Offering every 180 days. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for the period required pursuant to Section 2(a)(ii), in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(iv) An Initiating Holder and any other Holder that has requested its Registrable Securities Act, be included in a Demand Registration may withdraw all or any portion of the its Registrable Securities designated 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 InvestorInitiating 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 may, at its option, cease all efforts to secure effectiveness of the applicable Registration Statement. Upon receipt Such registration shall be deemed a Demand Registration unless (i) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all commercially reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (ii) the withdrawal is made (A) following the occurrence of a Demand Notice from Material Adverse Change or (B) because the Investor pursuant Registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential.
(v) Subject to the limitations contained in this Section 3.12(a)(ii)Agreement, the Company shall promptly (and in effect any event within thirty (30) days Demand Registration on such appropriate registration form of the date on which the Company receives such Demand NoticeCommission (x) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and (y) as shall be reasonably acceptable to permit the Investor registering disposition of the Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering)disposition specified in the Holder’s requests for such registration; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the total number Demand Registration for any offering and selling of Registrable Securities specified by the Holders in such Demand Notice (a “Demand shall be effected pursuant to an Automatic Shelf Registration Statement”, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and the Investor registering Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringincluded on such Registration Statement, it shall promptly so advise the Company will amend or supplement such Registration Statement as soon as reasonably practicable as may be necessary in order to enable such offering to take place.
(vi) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall take all reasonable steps (A) promptly prepare and file or cause to facilitate be prepared and filed (1) such distributionadditional 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 actions securities laws of such states as the Holder shall reasonably request; provided, however, that no such qualification shall be required pursuant to Section 3.12(c). The managing underwriters in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such distribution shall jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be acceptable necessary to apply for listing or to list the Investor registering Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be commercially reasonably necessary or appropriate or reasonably requested by the Holder to enable the Holder to consummate a public sale of such Registrable Securities in such underwritten offering. Any Demand accordance with the intended timing and method or methods of distribution thereof.
(vii) In the event the Holder transfers Registrable Securities included on a Registration Statement mayand such Registrable Securities remain Registrable Securities following such transfer, at the request of the Holders submitting Holder, the Demand Notice, Company shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415such 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, if available.
Affiliates of the Holder or transferees of the Holder, (B) The the Company shall use reasonable best efforts to keep each Demand has received written consent therefor from whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for Statement, other than the resale Holder, Affiliates of the Registrable Securities covered thereby for a period Holder or transferees of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
Holder and (C) The the Company shall receives a written request from the subsequent transferee, requesting that its shares of Common Stock be entitled to suspend included in the use of any effective Registration Statement under this Section 3.12(a)(ii) under Statement, with all information reasonably requested by the circumstances set forth in Section 3.12(d)Company.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 3 contracts
Sources: Registration Rights Agreement (Silverbow Resources, Inc.), Registration Rights Agreement (Silverbow Resources, Inc.), Registration Rights Agreement (Silverbow Resources, Inc.)
Demand Registration. (Aa) The Investor shall have the right, by Upon receipt of a written notice (the “request from a Demand Notice”) given to the Company, to request, Holder at any time following the 180th day after the date hereof, the Company shall prepare and file with the Commission a registration statement under the Securities Act (a “Registration Statement”) providing for the resale of the Registrable Securities, which may, at the option of the Demand Holder, be a registration statement that provides for the resale of the Registrable Securities from time to time during such periods when pursuant to Rule 415 under the Securities Act (a “Shelf Registration Statement or Shelf Registration Statements covering all Statement”). Within five (5) business days of the Investor’s receipt of a Demand Notice, the Company shall give written notice of such Demand Notice to all Holders, and the Holders shall have three (3) business days following receipt of such notice of the Demand Notice from the Company to request in writing (including by electronic mail) to the Company to be included as a seller of Registrable Securities is or are not existing and effective, that in such Registration Statement. The Company shall use its commercially reasonable efforts to cause the Company register, under and in accordance with Registration Statement to be declared effective by the provisions Commission as soon as reasonably practicable after the initial filing of the Securities ActRegistration Statement. The 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 or any portion of the Registrable Securities designated covered by the Investor. Upon receipt such Registration Statement (including those elected to be included in such Registration Statement following notice of a Demand Notice from the Investor Company pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”2.01). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use its commercially reasonable best efforts to keep each Demand cause the Registration Statement filed pursuant to this Section 3.12(a)(ii) 2.01 to be continuously effective effective, supplemented and usable amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares by such Demand Registration Statement effective, as such period may have ceased to be extended pursuant to this Section 3.12(a)(ii)(BRegistrable Securities (the “Effectiveness Period”). The time period for which Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Securities 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. 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 Company is required to maintain shall provide the Holders with written notice of the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) . The Company shall only be entitled obligated to suspend the use of any effective effect two (2) demand registrations on a Long-Form Registration Statement under this Section 3.12(a)(ii2.01 in any twelve-month period; provided, however, that a registration on a Long-Form Registration Statement shall not count as a registration under this Section 2.01 unless it has become effective. The Company shall be obligated to effect an unlimited number of registrations under this Section 2.01 on Short-Form Registration Statements. The Company shall not be obligated to file more than one (1) under the circumstances set forth Registration Statement (including Short-Form Registration Statements) in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided response to requests pursuant to this Section 3.12(a)(ii2.01 within 90 days after the effective date of any Registration Statement filed by the Company in response to requests pursuant to this Section 2.01. Once a Holder’s Registrable Securities become eligible for resale without restriction and without the need for current public information pursuant to any section of Rule 144 (or any similar provision then in effect) under the Securities Act, assuming the Holder of such Registrable Securities is not an affiliate (as defined in Rule 144(a)(1) under the Securities Act) of the Company, then such Holder may, at its option, at any time, request that the Company 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 not all be exercisable until terminated, including without limitation the Effectiveness Deadlineright to demand an Underwritten Offering and the right to participate in a Piggyback Registration, and such Holder, to the extent such Holder beneficially owns less than 0.5% of the Common Stock then outstanding, shall no longer be subject to any obligations under this Agreement, including without limitation the obligation to enter into letter agreements with underwriters pursuant to Section 2.13.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Smart Sand, Inc.), Registration Rights Agreement (Smart Sand, Inc.)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at At any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of least one hundred eighty (180) days following the Distribution, either of the Stockholders may, submit a Registration Request for Demand Registration covering all or part of his Registerable Shares, which request must request registration of at least the Minimum Amount. The Registration Request shall state the number of Registerable Shares to be registered and the intended plan of distribution thereof. uBid shall be obligated to register Registerable Shares pursuant to this Section 2 on a total of only two (2) occasions. A request withdrawn pursuant to Subsection 2(c) hereof or deemed to be a Piggyback Registration pursuant to Subsection 2(d) hereof shall be ignored for this purpose. uBid shall be deemed to have satisfied its obligation under this Section 2 with respect to a Registration Request if a registration statement filed pursuant to a Registration Request becomes effective under the Act and remains effective for the period required hereby, or if the failure of such a registration statement to become or remain effective results primarily from any action or inaction of either or both of the Stockholders. Subject to the conditions and limitations of Section 4 hereof, uBid will use its best efforts to file a registration statement under the Act registering the Registerable Shares covered by a Registration Request within forty-five (45) days after it receives such Registration Request unless such Registration Request is withdrawn as permitted by Subsection 2(c) hereof.
(b) The right to Demand Registration is subject to the procedures in Section 4 hereof and the following additional conditions and limitations:
(i) Any individual Stockholder joining a Registration Request may withdraw such Stockholder's Registerable Shares from the Registration Request at any time prior to the time the registration statement becomes effective, provided that uBid may ignore a notice of withdrawal made within 24 hours of the time the registration statement becomes effective. Following such a withdrawal, uBid shall not take any further action to register the withdrawn Registerable Shares, and shall not be obligated to register any Registerable Shares if the number of non-withdrawn Registerable Shares is less than the Minimum Amount. However, except as otherwise provided in Subsection 2(c) or (d) hereof, a Registration Request, once made, shall count as having been made for purposes of Subsection 2(a), unless it is withdrawn by all Stockholders making such request within fifteen (15) days after having been made or it is withdrawn before uBid devotes any significant efforts to the preparation of the registration statement.
(ii) Unless otherwise agreed to by uBid, any Demand Registration must relate to a firm commitment underwriting for which the managing underwriter shall be reasonably satisfactory to uBid (such satisfaction not to be withheld unreasonably) or a non-underwritten offering on a "shelf" basis in accordance with Rule 415 under the Act.
(iii) uBid shall be permitted to use any registration form available to it for the registration of Registerable Shares, and shall not be obligated to include in the prospectus any information that may be incorporated by reference or that is not required to be included therein by the applicable registration form.
(iv) No Registration Request may be made by a Stockholder if the amount of shares proposed to be sold could be sold by such Stockholder without limitation under Rule 144 under the Act.
(c) Notwithstanding the foregoing, if uBid is aware at the time it receives a Registration Request that a registered public sale of Shares is being contemplated or is in the process of being prepared (except as provided in Section 7 hereof), it will notify the Stockholders of the relevant facts, and any Stockholder who joined such Registration Request shall have the right to withdraw the request by written notice given to uBid within ten (10) days after uBid's notice under this Subsection 2(c), in which case such Registration Request will be deemed not to have been made for purposes of Subsection 2(a).
(d) For an additional ninety (90) days following the date on which the SEC declares such Stockholders may first submit a Registration Request for Demand Registration Statement effectiveRegistration, as such period may uBid will be extended pursuant entitled to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of include Shares in any Demand Registration Statement shall and to reduce the number of Shares to be extended sold by the aggregate Stockholders thereunder to a minimum of 20%, collectively, of the total offering plus any underwriters' over-allotment option. If, as a result of this cutback procedure, the number of days Shares sold by uBid in such offering constitutes more than one-half of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under total shares sold in the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubtoffering, the rights provided pursuant registration would be treated as a Piggyback Registration under Section 3 below, and a Registration Request will be deemed not to this Section 3.12(a)(iihave been made for purposes of Subsection 2(a) shall not be exercisable until the Effectiveness Deadlinehereof.
Appears in 3 contracts
Sources: Separation and Distribution Agreement (Ubid Inc), Registration Rights Agreement (Ubid Inc), Separation and Distribution Agreement (Ubid Inc)
Demand Registration. (Ai) The Investor shall have At any time during the rightDemand Registration Period upon delivery to the Company by the holder or holders of at least 50% of all Warrants and Warrant Shares (such percentage determined by aggregating the number of Warrant Shares into which Warrants are then exercisable and the number of Warrant Shares then outstanding) (such holder or holders, by written notice (the “Demand NoticeInitiating Holders”) given to the Company, to request, at any time and from time to time during such periods when of a Shelf written request (a “Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, Request”) that the Company registereffect a registration under the Securities Act of Registrable Securities, under and in accordance with which Registration Request shall specify the provisions number of Registrable Securities proposed to be sold (which number of Registrable Securities for all such Initiating Holder(s) must aggregate at least 50% of the Securities ActWarrant Shares as of such date), all or any portion and the intended method of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)disposition thereof, the Company shall will:
(x) promptly (and but in any event case within thirty (3010 days) days give written notice of the date on such Registration Request to all other holders of Warrants and to all other holders of Registrable Securities, which holders shall be entitled to join such Registration Request by delivering to the Company receives such Demand Notice) file with within 30 days a notice specifying the SEC, number of Registrable Securities proposed to be sold and the Company intended method of disposition thereof, in which case the term “Initiating Holders” shall thereafter include such other holders and the Registration Request shall be deemed to cover such holders and such number of Registrable Securities proposed to be sold by such holders; and
(y) use its best efforts to cause to be declared effective effect, as promptly expeditiously as practicable, the registration of all Registrable Securities covered by such Registration Request; provided that (A) subject to Section 6(a)(ii) the Company shall not be obligated to effect a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by pursuant to the Warrants on more than one occasion for Registration Requests from each of the Initial Holders (provided that in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringevent that notwithstanding its best efforts, it shall promptly so advise the Company and the Company shall take all reasonable steps is unable to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale register 100% of the Registrable Securities covered thereby in connection with such Registration Request by an Initial Holder, such Initial Holder shall be entitled to one additional Registration Request), (B) the Company shall not be obligated to effect a registration of Registrable Securities pursuant hereto on more than one occasion in any six month period, and (C) notwithstanding any provision to the contrary herein, the Company may delay the filing of a registration statement for such Registrable Securities for a period of one hundred eighty (180) days up to 90 days, measured from the date on which that the SEC declares Company receives the applicable Registration Request, by furnishing to each Initiating Holder within 10 Business Days of such Demand receipt a certified resolution of the Board of Directors of the Company stating that in the good faith judgment of the Board it would be detrimental or otherwise disadvantageous to the Company and its shareholders for such a registration statement to be filed at such time. If the Company furnishes such certified resolution, the Initiating Holders may, in their discretion, elect to relieve the Company of its obligation to proceed to effect the requested registration of the Registrable Securities upon the expiration of the 90-day period by withdrawing their Registration Statement effective, as such period may be extended Request. A Registration Request withdrawn pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) previous sentence shall not be exercisable until the Effectiveness Deadlinecounted as a Registration Request for purposes hereof.
Appears in 3 contracts
Sources: Warrant (Brooke Corp), Warrant Agreement (Brooke Corp), Warrant Agreement (Brooke Corp)
Demand Registration. (Aa) The Investor shall have If at any time after the right, date of this Agreement the Company receives a request from a Holder of Registrable Securities that the Company file a Registration Statement on Form S-1 covering the resale of the Registrable Securities held by written notice such Holder (the a “Demand Notice”), then the Company shall (i) given within five (5) days after the date it receives the Demand Notice, give notice thereof to all other Holders and (ii) as soon as reasonably practicable, but in no event later than the CompanyFiling Date, to request, at any time and from time to time during such periods when file with the Commission a Shelf Registration Statement on Form S-1 covering the resale of all Registrable Securities of the Holder that provided the Demand Notice and any additional Registrable Securities requested by the other Holders to be included therein, as specified by each such other Holder within twenty (20) days after such Holder has received notice from the Company pursuant to clause (i); provided that such Registration Statement need not include Registrable Securities already covered by an existing and effective Registration Statement The Registration Statement shall be for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as practicable but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement effective under the Securities Act until the date when all Registrable Securities covered by the Registration Statement have been sold or Shelf may be sold without volume restrictions pursuant to Rule 144(b)(i) promulgated under the Securities Act (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities requested by a Holder to be included in the Registration Statements Statement filed pursuant to Section 2(a), or for any other reason any such Registrable Securities are not permitted by the Commission to be included on a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which such filing may be made, an additional Registration Statement covering the resale of all of the Registrable Securities requested by Holder not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis at the market pursuant to Rule 415 or otherwise as may be acceptable to a Holder whose Registrable Securities were not registered for resale. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement effective under the Securities Act during the entire Effectiveness Period.
(c) If: (i) a Registration Statement covering all of the Investor’s Registrable Securities required to be covered thereby is or are not existing and effective, that filed by the Company register, under and in accordance with the provisions of Commission on or prior to the Securities ActFiling Date (or the applicable filing date if the Registration Statement is not the initial Registration Statement required to be filed under Section 2(a)), (ii) a Registration Statement covering all or any portion of the Registrable Securities designated is not declared effective by the Investor. Upon receipt of Commission on or prior to its required Effectiveness Date (it being understood that if the Company shall not have filed a Demand Notice from “final” prospectus for the Investor pursuant to this Registration Statement with the SEC under Rule 424(b) in accordance with Section 3.12(a)(ii2(f) below (whether or not such a prospectus is technically required by such rule), the Company shall promptly not be deemed to have satisfied this clause (ii)), (iii) the Company fails to file a request for the acceleration of the Effectiveness Date of the applicable Registration Statement as required by Section 3(c), (iv) there is a suspension or delisting of the Company’s Common Stock (or the Company fails to timely list all the Registrable Securities) on its principal trading market or exchange, (v) after its Effective Date, other than during an Allowable Grace Period (as defined below), such Registration Statement ceases to be effective and available for use by the Holders as to any Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for up to no more than 3 consecutive Trading Days (or 20 Trading Days in any event within thirty 12 month period in the aggregate) (30) days any such failure or breach being referred to as an “Event,” and for purposes of clauses (i)-(iv), on the date on which such Event occurs, or for purposes of clause (v), the date on which the Company receives Allowable Grace Period or other specified period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under this Agreement or under applicable law: (x) on each such Demand Notice) file with the SEC, and Event Date the Company shall thereafter use its best efforts pay to cause each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement; and (y) on each 30-day anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding the foregoing, in no event shall the partial damages under this Section 2(d) exceed an amount equal to 20% of the aggregate Investment Amounts.
(d) Notwithstanding anything to the contrary contained in this Agreement, in the event the staff of the Commission (the “Staff”) or the Commission requires any Holder seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be declared effective specifically identified as promptly an “underwriter” in order to permit such Registration Statement to become effective, and such Holder does not consent to being so named as practicablean underwriter in such Registration Statement, a registration statement on the appropriate form for the registration and sale as shall be selected by then in each such case, the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of reduce the total number of Registrable Securities specified to be registered on behalf of such Holder, until such time as the Staff or the Commission does not require such identification or until such Holder accepts such identification and the manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities other than those issued pursuant to the Purchase Agreement and in the event of any reduction pursuant to this paragraph, no Holder shall have any claim against the Company as a result of such reduction and any Event or other delay or breach of this Agreement occurring primarily due to such action by the Holders Staff or the Commission and any such relating reduction shall not require the Company to pay any partial damages pursuant to Section 2(d) hereof or otherwise provide the basis for any claim by any Holder against the Company pursuant to the Transaction Documents (it being understood that the foregoing does not constitute a waiver of Section 3.2(f) of the Securities Purchase Agreement by any Holder or the obligations of the Company under this paragraph and elsewhere in such Demand Notice (a “Demand Registration Statement”relation thereto). If In the Investor registering event of any reduction in Registrable Securities intends pursuant to distribute any Registrable Securities by means this paragraph, an affected Holder shall have the right to require, upon delivery of an underwritten offering, it shall promptly so advise a written request to the Company signed by the Holder, the Company to file a registration statement within 30 days of such request (subject to any restrictions imposed by Rule 415 or required by the Staff or the Commission) for re-sale by such Holder in a manner acceptable to such Holder, and the Company shall take following such request cause to be and keep effective such registration statement in the same manner as otherwise contemplated in this Agreement for registration statements hereunder, in each case until such time as: (i) all reasonable steps to facilitate Registrable Securities held by such distribution, including the actions required Holder have been registered pursuant to Section 3.12(c). The managing underwriters an effective Registration Statement in a manner acceptable to such Holder or (ii) the Registrable Securities may be resold by such Holder without restriction (including volume limitations) pursuant to Rule 144(b)(i) of the Securities Act (taking account of any Staff position with respect to “affiliate” status) or (iii) the Holder agrees to be named as an underwriter in any such distribution shall be Registration Statement in a manner acceptable to Holder as to all Registrable Securities held by such Holder and that have not theretofore been included in a Registration Statement under this Agreement (it being understood that the Investor registering special demand right under this sentence may be exercised by a Holder multiple times and with respect to limited amounts of Registrable Securities in order to permit the re-sale thereof by such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableHolder as contemplated above).
(Be) The In the event that Form S-1 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii(i) continuously effective and usable for register the resale of the Registrable Securities covered thereby for a period of one hundred eighty on another appropriate form reasonably acceptable to the Holders and (180ii) days from undertake to register the date Registrable Securities on which the SEC declares such Demand Registration Statement effective, Form S-1 as soon as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which form is available, provided that the Company is required shall use reasonable best efforts to maintain the effectiveness of any Demand the Registration Statement shall be extended then in effect until such time as a Registration Statement on Form S-1 covering the Registrable Securities has been declared effective by the aggregate number Commission. In the event the Company becomes eligible to register the Registrable Securities on Form S-3, the Company shall use reasonable best efforts to promptly register the Registrable Securities on Form S-3, provided that the Company shall use reasonable best efforts to maintain the effectiveness of days the Registration Statement(s) 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.
(f) By 5:30 p.m. on the Trading Day immediately following the Effective Date of all suspension periods each Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 3 contracts
Sources: Registration Rights Agreement (InsPro Technologies Corp), Registration Rights Agreement (InsPro Technologies Corp), Registration Rights Agreement (InsPro Technologies Corp)
Demand Registration. (Aa) The Investor If at any time prior to the fifth anniversary of the date of consummation of the Company’s initial public offering the Company shall have the right, by receive a written notice request (the a “Demand Notice”) given to from the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, Demand Committee that the Company register, effect the registration under and in accordance with the provisions of the Securities Act, Act of all or any portion of the Registrable Securities designated by specified in the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration StatementRegistration”), specifying the information set forth under Section 2.7(i), then the Company shall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 2.4, the registration under the Securities Act of the Registrable Securities for which the Demand Committee has requested registration under this Section 2.2, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as specified) of such Registrable Securities. If the Investor registering Demand Committee elects to effect a Demand Registration, the provisions of Section 2.5(a) with respect to the notices required and the determination of the number of Piggyback Registrable Securities intends to distribute any be included in a Piggyback Registration shall apply mutatis mutandis to such Demand Registration, but the inclusion of such Registrable Securities by means pursuant to this Section 2.2 shall be treated as part of the Demand Registration and not as a Piggyback Registration hereunder.
(b) The Demand Committee may request an underwritten unlimited number of Demand Registrations at any time prior to the fifth anniversary of the date of consummation of the Company’s initial public offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable subject to the Investor registering Registrable Securities limitations set forth in such underwritten offering. Any Section 2.4.
(c) Subject to the availability of Form S-3 or any successor registration form to effect a Demand Registration Statement mayRegistration, at the request of the Holders submitting the Demand NoticeCommittee, any Demand Registration shall be a shelf registration effected in accordance with Rule 415 under the Securities Act or any successor or similar rule (a “shelf” registration pursuant to Rule 415, if availableShelf Registration”).
(Bd) The Company shall use reasonable best efforts to keep each At any time, the Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares Committee may revoke such Demand Registration Statement effective, as such period may be extended pursuant request by providing a notice to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to revoking such Demand Registration Statement.
(C) request. The Company shall be entitled to suspend the use of liable for and pay all Registration Expenses in connection with any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d)Demand Registration, whether or not so revoked.
(De) For At the avoidance request of doubtthe Demand Committee, the rights provided pursuant Demand Registration shall involve an Underwritten Public Offering. If a Demand Registration involves an Underwritten Public Offering and the managing underwriter advises the Company and the Demand Committee that, in its view, the number of Registrable Securities and other securities requested to this Section 3.12(a)(iibe included in such registration exceeds the largest number of Class A Shares that can be sold without having a material adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Demand Offering Size”), the Company shall include in such Demand Registration, in the priority listed below, up to the Maximum Demand Offering Size:
(i) first, all Registrable Securities requested to be registered in the Demand Registration by the Demand Committee and all Required Third-Party Piggyback Securities (allocated as between the Covered Persons that have elected to participate in such Demand Registration in the aggregate and the holders of Required Third-Party Piggyback Securities in the aggregate on a Pro Rata Basis, and further allocated among the Covered Persons participating in such Demand Registration on a pro rata basis based on their respective Proposed Participation Amount, in each case, as and if necessary to ensure that the offering does not to exceed the Maximum Demand Offering Size); and
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other persons, with such priorities among them as the Company shall not be exercisable until the Effectiveness Deadlinedetermine.
Appears in 3 contracts
Sources: Registration Rights Agreement (Och-Ziff Capital Management Group LLC), Registration Rights Agreement (Och-Ziff Capital Management Group LLC), Registration Rights Agreement (Och Daniel)
Demand Registration. (Aa) The Investor shall have the right, by As promptly as practicable following written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice demand from the Investor pursuant to this Section 3.12(a)(iiAdministrative Agent following the occurrence of an Event of Default (as defined in the Credit Agreement), the Company shall promptly (and but in any no event within later than thirty (30) days following receipt of such demand, the date on which the Company receives such Demand Notice) Partnership shall file with the SECCommission a registration statement under the Securities Act providing for the resale of all Registrable Securities (the “Shelf Registration Statement”), and including the Company prospectus to be used in connection therewith. The Shelf Registration Statement shall thereafter be filed on Form S-3 pursuant to Rule 415 under the Securities Act or any successor form or rule thereto. No other Person shall be permitted to offer securities under the Shelf Registration Statement unless the Administrative Agent consents in writing. The Partnership shall use its reasonable best efforts to cause the Shelf Registration Statement to be declared become effective as promptly as practicable, a registration statement on practicable and to remain effective to the appropriate form extent necessary to ensure that it is available for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering resale of all Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of until all Registrable Securities specified covered by such Shelf Registration Statement have ceased to be Registrable Securities (the Holders in such Demand Notice (a “Demand Registration StatementEffectiveness Period”). If In connection with any registration pursuant to this Section 2.1, the Investor registering Partnership shall (x) promptly prepare and file such documents as may be necessary to register or qualify the Registrable Securities intends subject to distribute such registration under the securities laws of such states as such Holder shall reasonably request, and do any Registrable Securities by means and all other acts and things that may reasonably be necessary or advisable to enable the Holder to consummate a public sale of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offeringstates and (y) promptly prepare and file such documents as may be necessary to apply for listing or to list the Registrable Securities subject to such registration on such national securities exchange as the Registrable Securities are then listed or admitted for trading. Any Demand Except as set forth herein, all Registration Statement mayExpenses shall be paid by the Partnership, at without reimbursement by the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableHolder.
(Bb) The Company shall Notwithstanding anything to the contrary contained herein, the Partnership may, upon written notice to the Administrative Agent, suspend the Selling Holders’ use reasonable best efforts to keep each Demand of any prospectus which is a part of the Shelf Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale (in which event each such Selling Holder shall discontinue sales of the Registrable Securities covered thereby pursuant to the Shelf Registration Statement but such Selling Holder may settle any contracted sales of Registrable Securities), if (i) the Partnership is pursuing an acquisition, merger, reorganization, disposition or other similar transaction and the Partnership determines in good faith that its ability to pursue or consummate such a transaction would be materially adversely affected by any required disclosure of such transaction in the Shelf Registration Statement or (ii) the Partnership has experienced some other material non-public event, the disclosure of which at such time, in the good faith judgment of the Partnership, would materially adversely affect the Partnership; provided, however, in no event shall such Selling Holders be suspended under this Section 2.1(b) from selling Registrable Securities pursuant to the Shelf Registration Statement for a period that exceeds an aggregate of one hundred eighty 30 days in any 90-day period or 90 days in any 365-day period. Upon public disclosure of the events described in clauses (180i) days from or (ii) above or the date on which the SEC declares termination of such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(Bcondition(s). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant Partnership shall (A) provide prompt written notice of the same to the Administrative Agent instructing the Administrative Agent that sales of Registrable Securities are permitted and (B) take such other actions to permit sales of Registrable Securities as contemplated in this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness DeadlineAgreement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Atlas Resource Partners, L.P.), Registration Rights Agreement (Atlas Resource Partners, L.P.), Registration Rights Agreement (Atlas Pipeline Partners Lp)
Demand Registration. (A) The Investor shall have holders of the right, by written notice (the “Demand Notice”) given to the Company, to requestRegistrable Shares, at any time and from time time, may require the Company to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all effect the registration of the Investor’s Registrable Securities Shares. The right to request registration under this Section 10.2 may be exercised on two (2) separate occasions, only unless such request is or are not existing and effective, that the Company register, under and withdrawn in accordance with the provisions terms hereof. The two (2) rights granted hereunder are distinct and separate from any other rights to request registration which have been granted to any other Person. A shelf registration may be demanded pursuant to this Section 10.2. These demand registration rights may only be exercised if the holders of a majority of Conversion Stock (whether or not the Conversion Stock have been issued) (the "Majority Holders") provided, however, that if Tennessee Farmers holds any Registrable Shares, the Majority Holders must include Tennessee Farmers, shall give notice to the Company to the effect that holders of Notes or Conversion Stock intend to (i) transfer all or any part of the Conversion Stock or (ii) exercise all or any part of the Note and transfer all or any part of the Conversion Stock under such circumstances that a public distribution (within the meaning of the Securities Act, all or any portion ) of the Registrable Securities designated by Conversion Stock will be involved, then the Investor. Upon Company (A) within ten (10) days after receipt of a Demand Notice from such notice shall give written notice of the Investor proposed registration pursuant to this Section 3.12(a)(ii), 10.2 to the Company shall promptly other holders of Notes and Conversion Stock and (and in any event B) within thirty (30) days after receipt of such notice from the date on Majority Holders, shall file a registration statement pursuant to the Securities Act to the end that all Conversion Stock the holders of which requested registration thereof either pursuant to the original notice from the Majority Holders given pursuant to this sentence or by written notice given to the Company receives during such Demand Notice) file with 30-day period, may be sold under the SEC, and the Securities Act as promptly as is practicable thereafter. The Company shall thereafter use its best commercially reasonable efforts to cause any such registration to be declared become effective and to keep the prospectus included therein current for 135 days; provided, however, that such holders shall furnish the Company with such appropriate information as promptly is required in connection with such registration as practicable, a registration statement on the appropriate form Company may reasonably request in writing. If the managing underwriter for the registration and sale as any offering made pursuant to this Section 10.2 (who shall be selected by the Majority Holders, subject to the consent of the Company, which shall not be unreasonably withheld) advises the Company in writing that, in its opinion, the inclusion of all of the Conversion Stock requested to be included in such registration by the holders of Notes and as Conversion Stock would materially adversely affect the distribution of all such securities, then there shall be reasonably acceptable included in such registration shares of the holders of Notes or Conversion Stock pro rata based on the number of shares originally proposed to be registered by each holder of Notes or Conversion Stock and no other Common Shares shall be included in such registration. A registration will not count as a demand registration under this Section 10.2 until it has become effective and the Investor registering Registrable Securities holders of the Warrants or Conversion Stock participating in accordance the demand registration are able to register and sell at least 90% of the Conversion Stock originally requested to be included in such registration. The Company agrees to enter into an underwriting agreement in customary form with the intended method or methods of distribution (which may be managing underwriter. Such underwriting agreement will contain such representations and warranties by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters other terms and provisions as are customarily contained in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring underwriting agreements with respect to such Demand Registration Statementsecondary distributions, including, without limitation, indemnities and contribution.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 3 contracts
Sources: Bridge and Consolidated Term Loan Agreement (Donlar Corp), Bridge and Consolidated Term Loan Agreement (Donlar Biosyntrex Corp), Bridge and Consolidated Term Loan Agreement (Donlar Corp)
Demand Registration. (A) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from any Holder at any time after the Investor pursuant to this Section 3.12(a)(ii)180th day after the Closing Date, the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective Commission as promptly as practicable, reasonably practicable a registration statement on under the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution Act (which may be by an underwritten offering)each, of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable providing for the resale of the Registrable Securities covered thereby identified in such Notice, which may, at the option of the Holder giving such Notice, be a Registration Statement that provides for a period the resale of one hundred eighty the Registrable Securities from time to time pursuant to Rule 415 under the Securities Act. The Company shall use commercially reasonable efforts to cause such Registration Statement to become effective as soon as reasonably practicable after the initial filing of the Registration Statement and to remain effective and available for the resale of the Registrable Securities by the Selling Holders named therein until the earlier of (180i) days from six months following such Registration Statement’s effective date and (ii) the date on which the SEC declares all Registrable Securities covered by such Demand Registration Statement effective, as have been sold. In the event one or more Holders request in a Notice to dispose of a number of Registrable Securities that such period may be extended Holder or Holders reasonably anticipates will result in gross proceeds of at least $30 million in the aggregate pursuant to this Section 3.12(a)(ii)(B)a Registration Statement in an Underwritten Offering, the Company shall retain underwriters that are reasonably acceptable to such Selling Holders in order to permit such Selling Holders to effect such disposition through an Underwritten Offering; provided, however, that the Company shall have the exclusive right to select the bookrunning managers. The time period for which Company and such Selling Holders shall enter into an underwriting agreement in customary form that is reasonably acceptable to the Company is required and take all reasonable actions as are requested by the managing underwriters to maintain facilitate the effectiveness Underwritten Offering and sale of any Demand Registrable Securities therein. No Holder may participate in the Underwritten Offering unless it agrees to sell its Registrable Securities covered by the Registration Statement on the terms and conditions of the underwriting agreement and completes and delivers all necessary documents and information reasonably required under the terms of such underwriting agreement. In the event that the managing underwriter of such Underwritten Offering advises the Company and the Holder in writing that in its opinion the inclusion of all or some Registrable Securities would adversely and materially affect the timing or success of the Underwritten Offering, the amount of Registrable Securities that each Selling Holder requested be included in such Underwritten Offering shall be extended by reduced on a Pro Rata basis to the aggregate number amount that the managing underwriter deems will not have such material and adverse effect. Any Holder may withdraw from such Underwritten Offering by notice to the Company and the managing underwriter; provided such notice is delivered prior to the launch of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementUnderwritten Offering.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 3 contracts
Sources: Agreement of Limited Partnership (Hess Midstream LP), Agreement of Limited Partnership (Hess Midstream LP), Partnership Restructuring Agreement (Hess Midstream Partners LP)
Demand Registration. (A) The If an Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends wishes to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps necessary to facilitate such distribution, including the actions required pursuant to by this Section 3.12(c)6. The managing underwriters lead underwriter to administer the offering in connection with any such distribution shall Demand Registration will be mutually acceptable to the Investors participating in the registration. Any registration requested by an Investor registering or Investors or Holders pursuant to this Section 6(c) is referred to in this Agreement as a “Demand Registration.” The Company is not required to complete more than (i) two underwritten offerings with respect to each Investor and its permitted transferees and assigns and (ii) one underwritten offering for all Investors during any period of twelve consecutive months. Whenever the Company receives a request for Demand Registration hereunder, the Company will give prompt written notice to each Investor of its intention to effect such a registration (but in no event less than ten days prior to the anticipated filing date) and will include in such registration all Registrable Securities in with respect to which the Company has received written requests for inclusion from Investors therein within ten business days after the date of the Company’s notice. Any such person that has made such a written request may withdraw its Registrable Securities from such underwritten offering by giving written notice to the Company and the managing underwriter, if any, on or before the fifth business day prior to the planned effective date of such underwritten offering. Any Demand Registration Statement mayIf the managing underwriter(s) of such underwritten offering advises the Investors that in its reasonable opinion the number of securities requested to be included in such offering exceeds the number which can be sold without adversely affecting the marketability of such offering (including an adverse effect on the per share offering price), at the request Investors will include in such registration or prospectus only such number of securities that in the reasonable opinion of such underwriters can be sold without adversely affecting the marketability of the Holders submitting offering (including an adverse effect on the Demand Noticeper share offering price), which securities will be so included on a “shelf” registration pursuant pro rata basis by each Investor in proportion to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to Registrable Securities held by such Investor on the date that such request for Demand Registration Statement.
(C) The Company shall be entitled was made. Anything to suspend the use of any effective Registration Statement under contrary in this Section 3.12(a)(ii6(c) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubtnotwithstanding, the rights provided pursuant to this Section 3.12(a)(ii) Company shall not be exercisable until obligated to effect a Demand Registration for aggregate gross proceeds of less than $25,000,000 (the Effectiveness Deadline“Minimum Threshold”); provided that the Minimum Threshold shall not apply to an Investor proposing to sell all of its remaining Registrable Securities of the Company.
Appears in 3 contracts
Sources: Investors Rights Agreement (SWS Group Inc), Investors Rights Agreement (SWS Group Inc), Funding Agreement (Hilltop Holdings Inc.)
Demand Registration. (A) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)any Holder, the Company Partnership shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective Commission as promptly as practicable, reasonably practicable a registration statement on under the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution Act (which may be by an underwritten offering)each, of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable providing for the resale of the Registrable Securities covered thereby identified in such Notice, which may, at the option of the Holder giving such Notice, be a Registration Statement that provides for a period the resale of one hundred eighty the Registrable Securities from time to time pursuant to Rule 415 under the Securities Act. The Partnership shall use commercially reasonable efforts to cause such Registration Statement to become effective as soon as reasonably practicable after the initial filing of the Registration Statement and to remain effective and available for the resale of the Registrable Securities by the Selling Holders named therein until the earlier of (180i) days from six months following such Registration Statement’s effective date and (ii) the date on which the SEC declares all Registrable Securities covered by such Demand Registration Statement effective, as have been sold. In the event one or more Holders request in a Notice to dispose of a number of Registrable Securities that such period may be extended Holder or Holders reasonably anticipates will result in gross proceeds of at least $30 million in the aggregate pursuant to this Section 3.12(a)(ii)(B)a Registration Statement in an Underwritten Offering, the Partnership shall retain underwriters that are reasonably acceptable to such Selling Holders in order to permit such Selling Holders to effect such disposition through an Underwritten Offering; provided, however, that the Partnership shall have the exclusive right to select the bookrunning managers. The time period for which Partnership and such Selling Holders shall enter into an underwriting agreement in customary form that is reasonably acceptable to the Company is required Partnership and take all reasonable actions as are requested by the managing underwriters to maintain facilitate the effectiveness Underwritten Offering and sale of any Demand Registrable Securities therein. No Holder may participate in the Underwritten Offering unless it agrees to sell its Registrable Securities covered by the Registration Statement on the terms and conditions of the underwriting agreement and completes and delivers all necessary documents and information reasonably required under the terms of such underwriting agreement. In the event that the managing underwriter of such Underwritten Offering advises the Partnership and the Holder in writing that in its opinion the inclusion of all or some Registrable Securities would adversely and materially affect the timing or success of the Underwritten Offering, the amount of Registrable Securities that each Selling Holder requested be included in such Underwritten Offering shall be extended by reduced on a Pro Rata basis to the aggregate number amount that the managing underwriter deems will not have such material and adverse effect. Any Holder may withdraw from such Underwritten Offering by notice to the Partnership and the managing underwriter; provided, such notice is delivered prior to the launch of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementUnderwritten Offering.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 3 contracts
Sources: Exchange Agreement (CNX Resources Corp), Agreement of Limited Partnership (CNX Midstream Partners LP), Limited Partnership Agreement (CNX Midstream Partners LP)
Demand Registration. (Aa) The Investor Initiating Holders shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the InvestorHolder’s Registrable Securities is or are not existing and effective, that the Company register, register under and in accordance with the provisions of the Securities Act, Act all or any portion of the Registrable Securities designated by the Investorsuch Initiating Holders. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)Notice, the Company shall promptly (and in any event within thirty ten (3010) business days from the date of receipt of such Demand Notice), notify each Holder (other than the Initiating Holders) of the receipt of such Demand Notice and allow such other Holder the opportunity to include Registrable Securities held by such Holders in the proposed registration by submitting its own written notice to the Company within ten (10) business days of receipt of the Company notice to such other Holder. The Company, within forty-five (45) days of the date on which the Company receives such the Demand Notice) , shall file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor Holders registering Registrable Securities Securities, in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor Holders registering Registrable Securities intends intend to distribute any Registrable Securities by means of an underwritten offering, it they shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c)3. The managing underwriters in any such distribution shall be mutually acceptable to the Investor Company and the Holders registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(Bb) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) 1.2 continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B1.2(b). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) 4 occurring with respect to such Demand Registration Statement.
(Cc) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) 1.2 under the circumstances set forth in Section 3.12(d)4.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 3 contracts
Sources: Registration Rights Agreement (First Federal Bancshares of Arkansas Inc), Registration Rights Agreement (First Federal Bancshares of Arkansas Inc), Registration Rights Agreement (First Federal Bancshares of Arkansas Inc)
Demand Registration. (Aa) The Investor Holders shall have the right, following the Effective Date, by written notice (the “a "Demand Notice”") given to the CompanyHLI, to request, at any time and from time request HLI to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, register under and in accordance with the provisions of the Securities Act, Act all or any portion of the Registrable Securities designated by such Holders; provided, however, that the Investoraggregate number of Registrable Securities requested to be registered pursuant to any Demand Notice and pursuant to any related Demand Notices received pursuant to the following sentence shall be at least 5,000,000. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with , HLI shall promptly notify all other Holders of the SEC, receipt of such Demand Notice and allow them the opportunity to include Registrable Securities held by them in the proposed registration by submitting their own Demand Notice. In the event that such Demand Registration involves an underwritten offering and the Company shall thereafter use its best efforts to cause managing underwriter or underwriters participating in such offering advise in writing the Holders of Registrable Securities to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities included in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of such offering that the total number of Registrable Securities specified by the Holders to be included in such Demand Notice offering exceeds the amount that can be sold in (a “Demand Registration Statement”). If or during the Investor registering time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Registrable Securities intends to distribute any be sold), then the amount of Registrable Securities to be offered for the account of such Holders shall be reduced pro rata on the basis of the number of Registrable Securities to be registered by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate each such distribution, including the actions required pursuant to Section 3.12(c)Holder. The managing underwriters in any such distribution Holders as a group shall be acceptable entitled to (i) unlimited Demand Registrations prior to the Investor registering Registrable Securities in such underwritten offering. Any Trigger Date and (ii) three Demand Registration Statement mayRegistrations following the Trigger Date, at less any Demand Registrations effected prior to the request of the Holders submitting the Demand NoticeTrigger Date, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii5.01(a) continuously unless any Demand Registration does not become effective and usable or is not maintained for the resale a period (whether or not continuous) of at least 120 days (or such shorter period as shall terminate when all the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares by such Demand Registration Statement effectivehave been sold pursuant thereto), as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for in which case the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall Holders will be entitled to suspend the use of any effective an additional Demand Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d)pursuant hereto.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Master Intercompany Agreement (Hartford Life Inc), Master Intercompany Agreement (Hartford Life Inc)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given Subject to the Company, to requestSection 6.1(b), at any time and from time to time during such periods when time, Sponsor Holdings or SHUSA (the “Requesting Demand Shareholder”) may, in a Shelf Registration Statement or Shelf Registration Statements covering all of written notice (a “Demand Notice”) to the Investor’s Registrable Securities is or are not existing and effectiveCompany, request that the Company registerfile a registration statement (a “Demand Registration Statement”) under the Securities Act covering the registration of all or a portion of such Requesting Demand Shareholder’s Registrable Securities, as specified in the Demand Notice. Upon the receipt of such Demand Notice, the Company shall use reasonable efforts to file a Demand Registration Statement providing for the registration under and the Securities Act of the Registrable Securities which the Company has been so requested to register by such Requesting Demand Shareholders, to the extent necessary to permit the disposition of such Registrable Securities in accordance with the provisions intended methods of distribution thereof specified in such request, and shall use its reasonable efforts to have such Demand Registration Statement declared effective by the Commission as soon as practicable thereafter and to keep such Demand Registration Statement continuously effective for a period of time necessary following the date on which such Demand Registration Statement is declared effective for 60 days or such shorter period which will terminate when all of the Registrable Securities covered by such Demand Registration Statement have been sold pursuant thereto (including, if necessary, by filing with the Commission a post-effective amendment or a supplement to the Demand Registration Statement or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Demand Registration Statement or by the Securities Act, all any state securities or “blue sky” laws, or any portion of the Registrable Securities designated other rules and regulations thereunder). Within five days after receipt by the Investor. Upon receipt Company of a Demand Notice from the Investor pursuant to in accordance with this Section 3.12(a)(ii6.1(a), the Company shall promptly give written notice of such Demand Notice to all other holders of Registrable Securities.
(and in b) The Company will not be obligated to file any event Demand Registration Statement within thirty (30) 180 days following the completion of the IPO or within 180 days of the effective date on which of a previous Demand Registration Statement. The maximum number of registrations that the Company receives is required to effect in response to Demand Notices given by (i) SHUSA is one and (ii) Sponsor Holdings is four (each, a “Demand Registration Right”). A Demand Registration Statement shall be deemed not to have become effective (and the related registration shall be deemed not to have been effected) unless it has been declared effective by the Commission and remains effective for the period required by Section 6.1(a); provided, however, that if, after it has been declared effective, the offering of any Registrable Securities pursuant to such Demand NoticeRegistration Statement is interfered with by any stop order, injunction or other order or requirement of the Commission or any other Governmental Authority (other than any such stop order or injunction issued as a result of the inclusion in such Demand Registration Statement of any information supplied to the Company for inclusion therein by a Requesting Demand Shareholder), such Demand Registration Statement will be deemed not to have become effective.
(c) Notwithstanding anything in this Agreement to the contrary, with respect to any Demand Registration, if (A) (i) the Company is planning to prepare and file with a registration statement for a primary offering by the SECCompany of its Securities, or (ii) there is any pending or contemplated material acquisition, corporate reorganization or other material matter involving the Company or there is any pending or contemplated financing by the Company (each, a “Material Transaction”), and (B) the CEO or CFO of the Company notifies in writing each Requesting Demand Shareholder that such officer has reasonably concluded that under such circumstances it would be in the Company’s best interest to postpone the filing of a Demand Registration Statement, then the Company may postpone for up 60 days the filing or the effectiveness (but not the preparation) of a Demand Registration Statement (a “Blackout Period”); provided, that the Company may not on any of the foregoing grounds postpone the filing or effectiveness of Demand Registration Statement more than once during any 12-month period (unless the Requesting Demand Shareholders consent in writing to a longer postponement of the filing or effectiveness of such registration statement). Upon notice by the Company to the Requesting Demand Shareholder of any such determination, the Requesting Demand Shareholder covenants that it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to clause (i) above, promptly halt any offer, sale, trading or other Transfer by it or any of its Affiliates of any Registrable Securities for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration Statement, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, will deliver to the Company any copies then in the Requesting Demand Shareholder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. After the expiration of any Blackout Period and without further request from any Requesting Demand Shareholder, the Company shall thereafter effect the filing of the Demand Registration Statement and shall use its best reasonable efforts to cause any such Demand Registration Statement to be declared effective as promptly as practicablepracticable unless the Requesting Demand Shareholder shall have, prior to the effective date of such Demand Registration Statement, withdrawn in writing its initial request, in which case such withdrawn request shall not constitute a registration statement on Demand Registration Right for purposes of determining the appropriate form for number of Demand Registration Rights to which Sponsor Holdings or SHUSA is entitled under this Agreement.
(d) If at any time or from time to time any Requesting Demand Shareholder desires to sell Registrable Securities in an Underwritten Offering pursuant to a Demand Registration Statement, the registration managing underwriter and sale as all other underwriters shall be selected by the Company and as Company. Notwithstanding the foregoing, (i) if Sponsor Holdings exercises its Demand Registration Rights, Sponsor Holdings shall be reasonably acceptable have the right to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), select one of the total number joint lead managing underwriters and one of Registrable Securities specified by the Holders in such Demand Notice co-managers and (a “ii) if SHUSA exercises its Demand Registration Statement”). If Rights, SHUSA, shall have the Investor registering Registrable Securities intends right to distribute any Registrable Securities by means select one of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The joint lead managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request and one of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableco-managers.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Shareholder Agreement (Santander Holdings USA, Inc.), Shareholder Agreement (Santander Consumer USA Holdings Inc.)
Demand Registration. (Aa) The At any time following the first Business Day following the Closing Date, each Demand Investor shall have the right, by written notice may request in writing (the a “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion part of the Registrable Securities designated held by such Demand Investor shall be registered under the Securities Act (a “Demand Registration”), to the extent the Company is not then eligible to file a Resale Shelf Registration Statement; provided that the Company shall not be required to comply with this Section 1.9 unless (i) such Demand Investor holds any Registrable Securities and (ii) such Demand Investor (A) is, or within three (3) months prior thereto was, an Affiliate of the Company or (B) such Demand Investor beneficially owns a number of shares of Common Stock issued or issuable to such Demand Investor upon conversion of the Preferred Stock that exceeds 3% of the Company’s outstanding Common Stock (after giving effect to any such conversion). The Company shall effect the registration of all such or such part of Demand Investor Registrable Securities as soon as practicable; provided that (i) the Company shall not be required to effect any registration under this Section 1.9 within a period of ninety (90) days following the effective date of a previous registration for which such Demand Investor had an opportunity to participate, and (ii) this provision shall not apply if a Resale Shelf Registration Statement, as applicable, has been filed pursuant to Section 1.1 and is effective and available for use. The Company shall not be required to effect (x) more than two (2) registrations under this Section 1.9 requested by the applicable Demand Investor; or (y) any offering the anticipated gross proceeds of which shall be less than $300,000,000. Upon receipt of a Any Demand Investor may elect to withdraw from any offering for which such Demand Investor delivered its Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts 1.9 by giving written notice to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps underwriter(s) of its request to facilitate such distribution, including the actions required pursuant withdraw prior to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring registration statement filed with the SEC with respect to such Demand Registration. If such Demand Investor withdraws from a proposed offering relating to a Demand Registration, then such Demand Investor shall reimburse the Company for the costs associated with the withdrawn Demand Registration Statement.
(Cin which case such registration shall not count as a Demand Registration provided for in this Section 1.9) or such withdrawn registration shall count as a Demand Registration provided for in this Section 1.9. Notwithstanding any other provision of this Section 1.9, if the managing underwriter advises the applicable Demand Investor in writing that marketing factors require a limitation on the dollar amount or the number of shares to be underwritten, then the amount of Demand Investor Registrable Securities proposed to be registered shall be reduced appropriately. The Company shall be entitled to suspend the use of not register securities for sale for its own account in any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided registration requested pursuant to this Section 3.12(a)(ii) shall not be exercisable until 1.9 unless permitted to do so by the Effectiveness Deadlinewritten consent of such Demand Investor.
Appears in 2 contracts
Sources: Registration Rights Agreement (Keurig Dr Pepper Inc.), Investment Agreement (Keurig Dr Pepper Inc.)
Demand Registration. (Aa) The Investor As soon as possible after the date hereof, the Company shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when file a Shelf Registration Statement or Shelf Registration Statements with the SEC covering the resale of all of the Investor’s Registrable Securities is or are not existing and effective, Securities. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. In the event that the Company register, is unable to register for resale under and in accordance with the provisions Rule 415 all of the Registrable Securities Acton the Registration Statement that it has agreed to file pursuant to Section 2(a) due to limits imposed by the SEC?s interpretation of Rule 415, all or any then the Company shall be obligated to include in such Registration Statement (as withdrawn and refiled if necessary to comply with Rule 415) only such limited portion of the Registrable Securities designated as the SEC shall permit. Any exclusion of Registrable Securities shall be made pro rata among the Holders in proportion to the number of Registrable Securities held by such Holders. Any request for acceleration of the InvestorRegistration Statement shall seek effectiveness at 5:00 p.m., New York time, or as soon thereafter as practicable. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the The Company shall notify the Holders by facsimile or e-mail as soon as promptly (practicable, and in any event within thirty (30) days of event, prior to 9:00 a.m., New York time, on the date on which the Company receives such Demand Notice) day after any Registration Statement is declared effective, shall file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective SEC under Rule 424 a final prospectus as promptly as practicable, a registration statement and in any event, prior to 9:00 a.m., New York time, on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute day after any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableis declared effective.
(Bb) The Company shall use reasonable best efforts to keep each Demand prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an Additional Registration Statement filed pursuant on Form S-1 (or Form S-3, if applicable) covering the resale of all of the Registrable Securities not previously registered in a Registration Statement or a preceding Additional Registration Statement as the case may be. To the extent the SEC does not permit the aforesaid Registrable Securities to this Section 3.12(a)(ii) continuously effective and usable for be registered on an Additional Registration Statement, the Company shall file Additional Registration Statements successively trying to register on each such Additional Registration Statement the maximum number of remaining Registrable Securities until the resale of the remaining Registrable Securities covered thereby for a period of one hundred eighty (180) days from have been registered with the date on which SEC. The Company shall use its commercially reasonable efforts to have each Additional Registration Statement declared effective by the SEC declares such Demand Registration Statement effectiveas soon as practicable, as such period may but in no event later than the Additional Effectiveness Deadline. By 9:00 a.m. New York time on the business day following the Additional Effective Date, the Company shall file with the SEC in accordance with Rule 424 the final prospectus to be extended used in connection with sales pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Additional Registration Statement.
(Cc) The If a Registration Statement or Additional Registration Statement covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline or Additional Filing Deadline, respectively, the Company will make pro rata payments to each Holder, as liquidated damages and not as a penalty, in an aggregate amount equal to 2% of the Fully Diluted Shares Outstanding for each 30-day period or pro rata for any portion thereof following the Filing Deadline or Additional Filing Deadline for which no Registration Statement or Additional Registration Statement, as the case may be, is filed with respect to the Registrable Securities. If a Registration Statement or Additional Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) business days after the SEC shall have informed the Company that there will be no further comments on the Registration Statement, or the Additional Registration Statement, as the case may be, (ii) the Effective Deadline or (iii) an Additional Effectiveness Deadline (either (i), (ii) or (iii) shall be entitled deemed the ?Effectiveness Deadline?), the Company will make pro rata payments to suspend each Holder, as liquidated damages and not as a penalty, in an aggregate amount equal to 2% of the use of Fully Diluted Shares Outstanding for each 30-day period or pro rata for any effective portion thereof following the Effectiveness Deadline for which no Registration Statement under this Section 3.12(a)(iiis declared effective with respect to the Registrable Securities; provided, however, that no such damages shall apply to the extent the delay is caused by any act or omission of the Holder in furnishing information needed to register the shares. Such issuance shall constitute the Holders exclusive remedy for such events, but shall not affect the right of the Holders to seek injunctive relief. Such issuance shall be made to each Holder via delivery of a Common Stock certificate within five (5) under the circumstances set forth in Section 3.12(d)business days of such event.
(Dd) For Notwithstanding the avoidance provisions of doubtthis Section 2.1, in no event shall the Company be liable for liquidated damages in the event that the Company is unable to register for resale all of the Registrable Securities on the Registration Statement that it has agreed to file pursuant to Section 2(a) due to limits imposed by the SEC?s interpretation of Rule 415 provided, however, in such event, the rights provided Company shall timely file and obtain effectiveness of an Additional Registration Statement pursuant to this the provisions of Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline2(b).
Appears in 2 contracts
Sources: Registration Rights Agreement (AMBER Ready, Inc), Registration Rights Agreement (AMBER Ready, Inc)
Demand Registration. (A) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at At any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all ninety (90) days after the closing of the Investor’s Registrable Securities is or are not existing and effectiveOffering, that the Company register, under and in accordance with the provisions holders of the Securities Act, all or any portion a majority of the Registrable Securities designated then outstanding may request registration under the Securities Act of all of the Registrable Securities that are not then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 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 InvestorHolders of all of the Registrable Securities (each, a “Demand Registration”). Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)such request, the Company shall promptly (and but in any 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 who shall then have ten (10 calendar days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall (i) use its commercially reasonable efforts to make the initial filing of the Registration Statement within thirty ninety (3090) calendar days of after the date on which the Company receives such Demand Noticeinitial request is given] (ii) file with the SEC, and the Company shall thereafter use its best commercially reasonable efforts to cause such Registration Statement to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company Commission as soon as practicable thereafter, and as shall (iii) use its commercially reasonable efforts to keep such Registration Statement effective until the date on which all securities under such Registration Statement have ceased to be reasonably acceptable to the Investor registering Registrable Securities (the “Effectiveness Period”). The Registration Statement filed hereunder shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) that “Plan of Distribution” in accordance with substantially the intended method or methods of distribution form attached hereto as Annex A. Notwithstanding the foregoing, in the event that the staff (which may be by an underwritten offering), the “Staff”) of the total Commission should limit the number of Registrable Securities that may be sold pursuant to the Registration Statement, the Company may remove from the Registration Statement such number of Registrable Securities as specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If Commission on behalf of all of the Investor registering holders of Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringon a pro rata basis among the holders thereof. In such event, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including give the actions required pursuant to Section 3.12(c)Purchasers prompt notice of the number of Registrable Securities excluded therefrom. The managing underwriters in any such distribution Company shall not be acceptable required to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be effect a “shelf” registration pursuant to Rule 415, if available.
Form S-3 (B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period or any other form for which the Company is required to maintain then qualifies or which counsel for the effectiveness of any Demand Registration Statement Company shall deem appropriate and which form shall be extended available for the resale by the aggregate number of days Holders of all suspension periods pursuant to Section 3.12(dof the Registrable Securities) occurring with respect to such Demand Registration Statementmore than two (2) times for the holders of Registrable Securities as a group.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (Avinger Inc), Registration Rights Agreement (Avinger Inc)
Demand Registration. (Aa) The Investor Following the Lock-Up Period, Management Stockholder shall have the right, subject to the terms of this Agreement, to require Activision to register for offer and sale under the Securities Act all or a portion of the Registrable Securities then owned by Management Stockholder subject to the requirements and limitations in this Section 6.1. In order to exercise such right, Management Stockholder must give written notice to Activision (the a “Demand Notice”) given to requesting that Activision register under the Company, to request, at any time Securities Act the offer and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all sale of the Investor’s Registrable Securities (i) having a market value on the date the Demand Notice is received (the “Demand Date”) of at least $50 million based on the then prevailing market price, or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, (ii) representing all or any portion of the Registrable Securities designated then held by the InvestorManagement Stockholder. Upon receipt of the Demand Notice, Activision shall (i) promptly notify such other Persons as may be entitled to participate in such sale of the receipt of such Demand Notice, (ii) prepare and file with the Commission as soon as practicable and in no event later than 90 days after the Demand Date a Demand Registration Statement relating to the offer and sale of the Applicable Securities on any available form agreed to by the Management Stockholder and Activision for which Activision then qualifies (which may include a “shelf” Registration Statement under Rule 415 promulgated under the Securities Act solely for use in connection with delayed underwritten offerings under Rule 415 promulgated under the Securities Act) and (iii) use reasonable efforts to cause such Demand Registration Statement to be declared effective under the Securities Act as promptly as practicable. Activision shall use reasonable efforts to have each Demand Registration Statement remain effective until the earlier of (i) one year (in the case of a shelf Demand Registration Statement) or 60 days (in the case of any other Demand Registration Statement) from the Effective Time of such Registration Statement and (ii) such time as all of the Applicable Securities have been disposed of by the Electing Holders.
(b) Activision shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or to delay the effectiveness, of a Registration Statement or offers and sales of Applicable Securities registered under a shelf Demand Registration Statement if a majority of the Independent Directors (as defined in Activision’s bylaws) of Activision determines in good faith that the sale of Registrable Securities covered by such Registration Statement (i) would interfere with any pending financing, acquisition, corporate reorganization or other corporate transaction involving Activision or any of its Subsidiaries, (ii) would require disclosure of any event or condition that such directors determine would be disadvantageous for Activision to disclose and which Activision is not otherwise required to disclose at such time, or (iii) would otherwise be materially detrimental to Activision and its Subsidiaries, taken as a whole, and furnishes to the Electing Holders a copy of a resolution of such Independent Directors setting forth such determination; provided, however, that no single postponement shall exceed 120 days in the aggregate. Activision shall advise the Electing Holders of any such determination as promptly as practicable.
(c) Notwithstanding anything in this Section 6.1, Activision shall not be obligated to take any action under this Section 6.1:
(i) with respect to more than two (2) Demand Registration Statements relating to underwritten offerings which have become effective and which covered all the Registrable Securities requesting to be included therein; or
(ii) with respect to more than two (2) Demand Registration Statements which have become and remained effective as required by this Agreement in a twenty-four month period.
(d) Activision may include in any registration requested pursuant to Section 6.1(a) hereof other securities for sale for its own account or for the account of another Person, subject to the following sentence. In connection with an underwritten offering, if the managing underwriter advises Activision and the Electing Holders that in its good faith view the number of securities requested to be registered exceeds the maximum number which can be sold in such offering without materially adversely affecting the pricing, timing or likely success of the offering (with respect to any offering, the “Maximum Number”), Activision shall include such Maximum Number in such Registration Statement as follows: (i) first, the Applicable Securities requested to be registered by Management Stockholder, (ii) second, the Applicable Securities requested to be included by any other Electing Holders, if any, (iii) third, any securities proposed to be included by Activision and (iv) fourth, any other securities requested to be included in such Registration Statement. For purposes of this Agreement, an “underwritten offering” shall be an offering pursuant to which securities are sold to a broker-dealer or other financial institution or group thereof for resale by them to investors.
(e) Management Stockholder shall have the right to withdraw his Demand Notice (in which case such Demand Notice shall be deemed never to have been given for purposes of Section 6.1(a) or Section 6.1(c)) (i) at any time prior to the time the Demand Registration Statement has been declared or becomes effective if Management Stockholder reimburses Activision for the reasonable out-of-pocket expenses incurred by it prior to such withdrawal in effecting such Registration, (ii) upon the issuance by the Commission or any court or other governmental agency or authority of a stop order, injunction or other order which prohibits or interferes with such Registration, (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied other than as a result of default by Management Stockholder, or (iv) if Activision exercises any of its rights under Section 6.1(b) of this Agreement. If Management Stockholder withdraws a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)6.1(e) and Activision nevertheless decides to continue with the Registration as to securities other than the Applicable Securities, then Management Stockholder shall be entitled to participate in such Registration pursuant to Section 6.2 hereof, but in such case the Company shall promptly (and in any event within thirty (30) Intended Offering Notice must be given to Management Stockholder at least 10 business days prior to the anticipated filing date of the date on which the Company receives such Demand Notice) file with the SEC, Registration Statement and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as Management Stockholder shall be selected by required to give the Company Piggyback Notice no later than five (5) business days after Activision’s delivery of such Intended Offering Notice.
(f) If any Registration pursuant to this Section 6.1 shall relate to an underwritten offering, Management Stockholder and as Activision shall be select a joint lead managing underwriter reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (other party, which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) consent shall not be exercisable until unreasonably withheld, conditioned or delayed, and the Effectiveness Deadlineright of any other stockholder to participate therein shall be conditioned upon such stockholder’s participation in the underwriting agreements and arrangements required by this Agreement.
Appears in 2 contracts
Sources: Voting and Lock Up Agreement (Activision Inc /Ny), Voting and Lock Up Agreement (Activision Inc /Ny)
Demand Registration. (Ai) The Investor shall have Until such time as all Registrable Securities cease to be Registrable Securities, the rightCompany agrees to use its reasonable efforts to keep current and effective a shelf Registration Statement, by written notice (the “Demand Notice”) given and to the Company, file such supplements or amendments to request, at any time and from time to time during such periods when a Shelf Registration Statement as may be necessary or Shelf appropriate in order to keep such shelf Registration Statements covering all Statement continuously effective and useable, for the resale of Registrable Securities under the Securities Act.
(ii) If the Company is no longer eligible to use a shelf Registration Statement, the Company agrees within 30 days of a Holder’s written request to register the resale of a specified amount of the Investor’s Registrable Securities is or are not existing and effective, that (which shall represent at least 5% of the Company register, outstanding Common Stock) under and in accordance with the provisions of the Securities Act, all or any portion the Company will file a Registration Statement, on an appropriate form, to register the resale of such Registrable Securities, which Registration Statement will (if specified in the Holder’s notice) contemplate the ability of the Holders to effect an underwritten offering, and will use its reasonable efforts to cause such Registration Statement to become or be declared effective, and to file such supplements or amendments to such Registration Statement as may be necessary or appropriate in order to keep such Registration Statement effective and useable, for the resale of Registrable Securities designated by under the Investor. Upon receipt Securities Act, through the completion of a Demand Notice from the Investor pursuant offering thereof.
(iii) Notwithstanding anything to the contrary contained in this Section 3.12(a)(ii)Agreement, the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SECbe entitled, and the Company shall thereafter use its best efforts from time to cause to be declared effective as promptly as practicabletime, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable providing prior written notice to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering)Holders, of the total number of Registrable Securities specified by the to require such Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of the Prospectus included in any effective Registration Statement for resales of Registrable Securities under this any shelf Registration Statement pursuant to Section 3.12(a)(ii2(a)(i) or to postpone the filing or suspend the use of any Registration Statement pursuant to Section 2(a)(ii) for a reasonable period of time not to exceed 60 days in succession (or a longer period of time with the prior written consent of AIG, which consent shall not be unreasonably withheld) or two times in any one year period (a “Suspension Period”) if (A) the Board determines in good faith that effecting the registration (or permitting sales under an effective registration) would materially and adversely affect an offering of securities of the circumstances set forth Company, (B) the Company is in Section 3.12(d)possession of material non-public information and the Board determines in good faith that the disclosure of such information during the period specified in such notice would be materially detrimental to the Company, or (C) the Company shall determine that it is required to disclose in any such Registration Statement a contemplated financing, acquisition, corporate reorganization or other similar transaction or other material event or circumstance affecting the Company or its securities, and the Board determines in good faith that the disclosure of such information at such time would be materially detrimental to the Company or the holders of its equity securities.
(Div) For After the avoidance expiration of doubtany Suspension Period and without any further request from a Holder, the rights Company shall as promptly as reasonably practicable prepare a Registration Statement or post-effective amendment or supplement to the applicable shelf Registration Statement or Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Prospectus will not include a material misstatement or omission or be not effective and useable for resale of Registrable Securities.
(v) If at any time or from time to time the Holders desire to sell Registrable Securities representing at least 5% of the outstanding Common Stock in an underwritten offering, the managing underwriter or underwriters for such offering shall be selected by AIG. The Holders will provide the Company with prior notice of any such underwritten offering, such notice to be provided as soon as reasonably practicable after the Holders determine to proceed with such offering. The Company shall use its reasonable efforts to assist such managing underwriter or underwriters in their efforts to sell Registrable Securities pursuant to this Section 3.12(a)(ii) such Registration Statement and shall not be exercisable until use reasonable efforts to make senior executives with appropriate seniority and expertise reasonably available for “road show” or other presentations during the Effectiveness Deadlinemarketing period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Transatlantic Holdings Inc), Registration Rights Agreement (Transatlantic Holdings Inc)
Demand Registration. (Ai) The If (i) a Shelf Registration Statement has not been filed in accordance with Section 2(a) registering the offer and sale of such Registrable Securities as required in accordance with Section 2(a) or (ii) following the effectiveness of the Shelf Registration Statement contemplated by Section 2(a), the Company thereafter ceases to have an effective Shelf Registration Statement registering the offer and sale of all Registrable Securities during the Shelf Period (other than during any Suspension Period), subject to the terms and conditions of this Agreement, at any time after the expiration of the Lock‑Up Period, any Investor Holder shall have the option and right, exercisable by delivering a written notice to the Company (the a “Demand Notice”) given ), to require the Company to, pursuant to the Companyterms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to request, at any time and from time to time during such periods when Rule 415 on a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended timing and method of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(b)(ii) (A) represent at least 5% of the total outstanding Common Shares or (B) have an aggregate value of at least $50 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) Within five Business Days (or if the Registration Statement will be a Shelf Registration Statements Statement, within three Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for offer and resale the Registrable Securities on Form S‑3, in which case, within 90 days thereof), shall, subject to the limitations of this Section 2(b), file a Registration Statement in accordance with the terms and conditions of, and the intended timing and method of disposition described in, the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days after receipt of notice of the applicable Demand Notice given by the Company pursuant to this Section 2(b)(ii)). Each Holder agrees that such Holder shall treat as confidential the receipt of the notice of such Demand Notice, and shall not disclose or use the information contained in such notice without the prior written consent of the Company or until such time as the information contained therein is or becomes available to the public generally other than as a result of disclosure by the Holder in breach of the terms of this Agreement. The Company shall use commercially reasonable efforts to cause such Registration Statement to become, as soon as reasonably practicable after the filing thereof (but no later than five Business Days after the date the Company is notified by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review), and remain continuously, effective under the Securities Act until the earlier of (A) 180 days (or the expiration of the Shelf Period if a Shelf Registration Statement is requested) after the Effective Date of such Registration Statement or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold or otherwise disposed of or such Shares are no longer Registrable Securities (the “Effectiveness Period”); provided 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, the Company is not obligated hereunder to effect (A) a Demand Registration within 60 days after the closing of any Requested Underwritten Offering, or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Investor’s Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is or are not existing sufficient to permit offers and effective, that sales of the Company register, under number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the provisions intended timing and method of disposition 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 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(b)(iii) if, as a result of Section 2(b)(v), there is included in the Demand Registration less than the lesser of (x) Registrable Securities Act, of the Initiating Holder having a VWAP measured on the Effective Date of the applicable 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) A Holder may withdraw all or any portion of the its Registrable Securities designated included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement by delivering written notice to the InvestorCompany setting forth the number of Registrable Securities that the Holder intends to withdraw from such Demand Registration. Upon receipt of a Demand Notice written notice from the Investor pursuant Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or written notice from a Holder to this Section 3.12(a)(ii)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 promptly 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(b)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out‑of‑pocket fees and expenses (including the reasonable and documented fees and expenses of the Company’s counsel) incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or the occurrence of a Suspension Period or Blackout Period.
(v) The Company may include in any event within thirty such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(b)(v) and Section 2(e)(iii).
(30vi) days In the case of a Demand Registration not being underwritten, if the applicable Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to be included in such registration exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the date on which securities offered or the Company receives such Demand Notice) file with market for the SECsecurities offered, and the Company shall thereafter use its best efforts to cause include in such Demand Registration only that number of securities that, in the reasonable opinion of such Initiating Holder, will not have such adverse effect, with such number to be declared effective allocated as promptly as practicablefollows: (A) first, a registration statement 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 then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such Demand Registration, to the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration following the allocation provided in clauses (A) and (B) above, to any other holders of Company Securities entitled to participate in such Demand Registration, if applicable, based on the relative number of Company Securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form for of the registration and sale Commission (A) as shall be selected by the Company and (B) as shall be reasonably acceptable to permit the Investor registering disposition of the Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering)disposition as reasonably specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the total number Demand Registration for any offering and selling of Registrable Securities specified shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S‑3 (if available to the Company). If at any time a Registration Statement on Form S‑3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(b), 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 Registrable Securities subject to such Demand Registration, including under the securities laws of such jurisdictions as any Investor Holder shall reasonably request; provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of such 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 in to enable the Holders to consummate a public sale of such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand accordance with the intended timing and method of distribution thereof.
(ix) In the event a Holder transfers Registrable Securities included on a Registration Statement mayand such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Holders submitting Company shall amend or supplement such Registration Statement as may be necessary in order to enable the Demand Notice, be a “shelf” registration transferee of such Registrable Securities to offer and sell such Registrable Securities pursuant to Rule 415such 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, if available.
Affiliates of the Holder or transferees of the Holder or (B) The the Company shall use reasonable best efforts to keep has received written consent therefor from each Demand other Holder for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for Statement, other than the resale Holder, Affiliates of the Registrable Securities covered thereby for a period Holder or transferees of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementHolder.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (WaterBridge Infrastructure LLC), Registration Rights Agreement (WaterBridge Infrastructure LLC)
Demand Registration. (Aa) The Investor shall have On or after the rightdate that is fourteen (14) months after the closing of the Initial Public Offering, by written notice the Holders may, subject to Section 2.4 (the “Demand Notice”Black-Out Rights; Suspension Rights) given and Section 2.5 (Holdback Agreements), deliver to the Company, to request, at any time and from time to time during such periods when Company a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, written request that the Company register, under prepare and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, Commission a registration statement on the an appropriate form for under the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance Act (together with the intended method any amendments or methods of distribution (which may be by an underwritten offering)supplements thereto, of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If , registering under the Investor registering Securities Act Registrable Securities intends then outstanding having a Market Value of not less than $10,000,000 to distribute any effect an underwritten public offering of Registrable Securities by means of an underwritten offeringthe initiating Holders (a “Demand Registration”). Notwithstanding the foregoing, it shall promptly so advise the Company and the Company shall take not be obligated to effect more than one Demand Registration in any twelve (12) month period.
(b) Any request for a Demand Registration shall specify the number of Registrable Securities proposed to be sold and the intent to effect an underwritten public offering of such Registrable Securities. Within 10 Business Days after receipt of such request, the Company will give written notice of such registration request to all reasonable steps other Holders and include in such registration all such Registrable Securities with respect to facilitate which the Company has received written requests for inclusion therein within 15 Business Days after the mailing of the Company’s notice. Each such distribution, including request will also specify the actions required pursuant number of Registrable Securities to be registered and the intent to effect an underwritten public offering of such Registrable Securities.
(c) Subject to Section 3.12(c2.3(d). The managing underwriters in any such distribution shall be acceptable to , if all Holders that request the Investor registering Registrable Securities in such underwritten offering. Any filing of a Demand Registration Statement mayhave a sufficient number of Registrable Securities registered for sale pursuant to a Shelf Registration Statement, at the Company may satisfy the request to effect a Demand Registration by filing an appropriate prospectus supplement with the Commission to effect an underwritten public offering; provided, that such underwritten public offering shall be deemed a Demand Registration and shall be required to satisfy each of the Holders submitting the conditions and other requirements for a Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableRegistration specified in this Agreement.
(Bd) The Company shall use reasonable best efforts select the lead underwriter or underwriters and any co-manager or co-managers in connection with any underwritten public offering pursuant to keep each this Agreement, after consultation with the Holders initiating such Demand Registration.
(e) A registration will not count as a Demand Registration until it has become effective. For purposes of this Agreement, (i) an offering on a Demand Registration Statement filed pursuant is deemed to this Section 3.12(a)(iibe effected on the effective date thereof, and (ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for an underwritten public offering on a period of one hundred eighty (180) days from the date on which the SEC declares such Shelf Registration Statement that is deemed to be a Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d2.2(c) occurring is deemed to be effected on the date a prospectus supplement is filed with respect to such Demand Registration Statement.
the Commission (C) The Company shall be entitled to suspend other than any preliminary prospectus supplement). Notwithstanding the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubtforegoing, the rights provided pursuant to this Section 3.12(a)(ii) an offering shall not be exercisable until deemed to have been effected if such offering is not consummated as a result of (i) a breach by the Effectiveness DeadlineCompany of its obligations under this Agreement or any underwriting agreement relating to an underwritten public offering, or (ii) the Company exercising its rights under Section 2.4 (Black-Out Rights; Suspension Rights), and, in either case, after the offering would otherwise have been deemed to have been effected pursuant to the preceding sentence.
Appears in 2 contracts
Sources: Registration Rights Agreement (Thomas Properties Group Inc), Registration Rights Agreement (Thomas Properties Group Inc)
Demand Registration. Notwithstanding any other provisions of this Section 3, in no event shall more than one (A1) The Investor Demand Registration occur during any six-month period (measured from the effective date of the Registration Statement to the date of the next Demand Notice) 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 rightRegistration 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 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 Company shall give written notice (the “Demand Notice”) given of such Demand Notice to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all holders of the Investor’s Registrable Securities is or are not existing and effectiveshall, that the Company register, under and in accordance with subject to the provisions of the Securities ActSection 3(b) hereof, include in such registration all or any portion of the Registrable Securities designated with respect to which the Company received written requests for inclusion therein within ten (10) days after such Notice is given by the InvestorCompany to such holders. Upon receipt of a Demand Notice from the Investor All requests made pursuant to this Section 3.12(a)(ii), 3 will specify the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number amount of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company be registered and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c)intended methods of disposition thereof. The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use its commercially reasonable best efforts to keep each maintain the effectiveness of the Registration Statement (except in the case of a Shelf Registration Statement) with respect to any Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of at least one hundred eighty (180) days from after the effective date on thereof or such shorter period in which the SEC declares all Registrable Securities included in such Demand Registration Statement effectivehave actually been sold; provided, as however, that such period may shall be extended extended, if reasonably practicable, for a period of time equal to the period the holders of Registrable Securities refrain from selling any securities included in such Registration Statement at the request of (x) an underwriter or (y) the Company pursuant to this Section 3.12(a)(ii)(B)the provisions herein. The time period for which the Company is required shall use its commercially reasonable efforts to maintain the effectiveness of any Demand a Registration Statement that constitutes a Shelf Registration Statement at all times during the Effectiveness Period; provided, however, that any Holder of Registrable Securities that has been included in a Shelf Registration Statement may request that such Registrable Securities be removed from such Shelf Registration Statement, in which event the Company shall be extended 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 aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii3 shall contain all language (including, without limitation, on the Prospectus cover page, the principal stockholders’ table and the plan of distribution) shall as may be reasonably requested by an Investor Qualified Holder to allow for distribution to, and resale by, the 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 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 be exercisable until included in the Effectiveness Deadlineinitial Shelf Registration Statement, or revise such language if deemed necessary by such Investor Qualified Holder to effect such Partner Distribution.
Appears in 2 contracts
Sources: Registration Rights Agreement (Extraction Oil & Gas, Inc.), Registration Rights Agreement (Extraction Oil & Gas, LLC)
Demand Registration. (Aa) The Investor shall have Company shall, for the rightbenefit of the Holders, by written notice (in the “Demand Notice”) given event that the Company is unable to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering register all of the Investor’s Registrable Securities is or are not existing and effectivein the Automatic Registration Statement, that on one occasion, upon the Company register, under and in accordance with the provisions demand by Holders of a majority of the then Registrable Securities, commencing six months after the Automatic Registration Statement is declared effective by the SEC:
(i) Following a demand (a "Demand") by the Holders of a majority of the then Registrable Securities Act, to register all or any a portion of the Registrable Securities, use commercially reasonable efforts to file with the SEC a Demand Registration Statement relating to the offer and sale of such Registrable Securities designated by the Investor. Upon receipt Holders (but are not subject to an existing Registration Statement which is current and available for use by the Holders) from time to time; provided, however, that if the SEC shall comment or inquire about the Company's use of a the Demand Notice from Registration Statement to register all of the Investor pursuant to this Section 3.12(a)(ii)Registrable Securities, the Company shall promptly may exclude such Registrable Securities in accordance with Section 2.7 as it deems necessary or appropriate to respond to the SEC's comment or inquiry in order to permit the SEC to declare the Demand Registration Statement effective for a lesser number of Registrable Securities.
(ii) Use its commercially reasonable efforts to keep the Demand Registration Statement continuously effective, other than during Black-out Periods, in order to permit the Prospectus forming part thereof to be usable by Holders for a period of 365 days from the date that the Demand Registration Statement is declared effective by the SEC.
(iii) Notwithstanding any other provisions hereof, use commercially reasonable efforts to ensure that (i) any Demand Registration Statement and any amendment thereto and any Prospectus forming part thereof and any supplement thereto complies in all material respects with the 1933 Act, (ii) any event Demand Registration Statement and any amendment thereto does not, when it becomes effective, 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 and (iii) any Prospectus forming part of any Demand Registration Statement, and any supplement to such Prospectus (as amended or supplemented from time to time), does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances under which they were made, not misleading.
(b) If a Demand Registration Statement is not filed with the SEC within thirty forty-five (3045) days of the request of the Purchasers, provided that, if the Company is required to include audited financial statements in such registration statement which have not previously been filed (and were not previously required to have been filed) with the SEC prior to the expiration of such forty-five (45) day period, such period shall be extended to the 30th day following the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain file (subject to any applicable extensions under Rule 12b-25 under the effectiveness 1934 Act (or any similar provision then in force)) an annual report on Form 10-KSB (or Form 10-K) including such financial statements, subject to Black-out Periods, the Company will make pro rata payments to each of the Purchasers, as liquidated damages and not as a penalty, in an amount equal to 1.00% of the product of (x) $0.10 multiplied by (y) the number of Shares of such Purchaser as to which the Demand relates for each 30-day period or pro rata for any Demand portion thereof following the date by which such Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring should have been filed for which no Registration Statement is filed with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use Registrable Securities; provided, however, that the amount of any effective Registration Statement liquidated damages payable under this Section 3.12(a)(ii2.1(b) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant payable to this Section 3.12(a)(ii) each Purchaser shall not exceed the aggregate amount paid by such Purchaser for such Registrable Securities less any other amount the Company otherwise actually pays to such Purchaser plus an amount equal to Purchaser's reasonable attorney fees and costs of collection in respect of such liquidated damages as a remedy for such event. Such payments shall be exercisable until in partial compensation to the Effectiveness DeadlinePurchasers, and shall not constitute the Purchasers' exclusive remedy for such events. Such payments shall be made to each Purchaser in cash.
Appears in 2 contracts
Sources: Registration Rights Agreement (Gilman & Ciocia Inc), Investor Purchase Agreement (Gilman & Ciocia Inc)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at At any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all after the date of this Agreement, holders of at least 25% of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, then outstanding may request registration under and in accordance with the provisions of the Securities Act, Act of all or any portion of the Registrable Securities designated by on Form S-1 or any successor form thereto (each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the Investorapproximate number of Registrable Securities required to be registered. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)such request, the Company shall promptly (and but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have fifteen (15) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall cause a Registration Statement on Form S-1 (or any event successor form) to be filed within thirty (30) days of after the date on which the Company receives such Demand Notice) file with the SEC, initial request is given and the Company shall thereafter use its best efforts to cause such Registration Statement to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times under this Agreement; provided, that a Registration Statement shall not count as a Long-Form Registration requested under Section 2(a) unless and as shall be reasonably acceptable until it has become effective and the holders requesting such registration are able to register and sell all of the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may requested to be by an underwritten offering), of the total number of Registrable Securities specified by the Holders included in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableregistration.
(Bb) The Company shall use reasonable its best efforts to keep each Demand qualify and remain qualified to register securities under the Securities Act pursuant to a Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the resale use of a Registration Statement on Form S-3, the holders of Registrable Securities shall have the right to request an unlimited number of registrations of the Registrable Securities covered thereby on Form S-3 or any similar short-form registration (each a “Short-Form Registration” and, together with each Long-Form Registration, a “Demand Registration”). Each request for a period Short-Form Registration shall specify the approximate number of one hundred eighty Registrable Securities requested to be registered. Upon receipt of any such request, the Company shall promptly (180but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have fifteen (15) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall cause a Registration Statement on Form S-3 (or any successor form) to be filed within thirty (30) days after the date on which the SEC declares initial request is given and shall use its best efforts to cause such Demand Registration Statement effective, as such period may to be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended declared effective by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementCommission as soon as practicable thereafter.
(Cc) The Company shall not be obligated to effect any Demand Registration within ninety (90) days after the effective date of a previous Demand Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register, and actually sold, at least twenty-five percent (25%) of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to sixty (60) days the filing or effectiveness of a Registration Statement for a Demand Registration if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration would (i) materially interfere with a significant acquisition, corporate organization 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; provided, however, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration shall be entitled to suspend withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as one of the use permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration hereunder only once in any period of any effective Registration Statement under this Section 3.12(a)(iitwelve (12) under the circumstances set forth in Section 3.12(d)consecutive months.
(Dd) For If the avoidance holders of doubtthe 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 rights provided Company as a part of their request made pursuant to this Section 3.12(a)(ii2(a) or Section 2(b), and the Company shall include such information in its notice to the other holders of Registrable Securities. The holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering.
(e) 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 initially requesting such registration, which consent shall not be exercisable until unreasonably withheld or delayed. If a Demand Registration involves an underwritten offering and the Effectiveness Deadlinemanaging underwriter of the requested Demand Registration advises the Company and the holders of Registrable Securities in writing that in its opinion the number of shares of Common Stock proposed to be 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 adversely affect the price per share of the Registrable Securities proposed to be 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 included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Computer Vision Systems Laboratories Corp.), Registration Rights Agreement (Computer Vision Systems Laboratories Corp.)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to requestIf, at any time and from time to time during such periods when a after the Applicable Date, the Shelf Registration Statement is not effective or Shelf Registration Statements covering otherwise available, the Investor may request in a written notice to the Company (the “Request”) that the Company effect the registration under the Securities Act of some or all of the Investor’s Registrable Securities is or are not existing and effectivethen owned by the Investor; provided, however, that the Company registerwill not be required to effect more than one registration pursuant to this Section. Following the receipt of a Request, the Company shall, subject to the limitations of this Section 2, use its commercially reasonable efforts to effect, as soon as practicable, the registration under and in accordance with the provisions of the Securities Act, Act of all or any portion of Registrable Securities that the Investor requests to be registered.
(b) If the Investor intends to distribute the Registrable Securities designated covered by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities request by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required as a part of its request made pursuant to this Section 3.12(c)2.3. The managing underwriters in any In such distribution shall be acceptable to event, the right of the Investor registering to include its Registrable Securities in such registration shall be conditioned upon the Investor’s participation in such underwriting and the inclusion of Registrable Securities in the underwriting to the extent provided herein. The Investor shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Investor (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten offering(including Registrable Securities), then the Company shall so advise the Investor; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration will not be reduced unless all other securities of the Company (including those that are entitled by contract or otherwise to be included therein) are first entirely excluded from such underwriting and registration. Any Demand Registration Statement may, at Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableregistration.
(Bc) The Notwithstanding the foregoing, the Company shall use reasonable best efforts to keep each Demand Registration Statement filed may postpone having a registration statement pursuant to this Section 3.12(a)(ii2.3 declared effective for a reasonable period not to exceed forty-five (45) continuously effective and usable for consecutive trading days if the resale Board of Directors of the Registrable Securities covered thereby for a period Company shall have determined in good faith because of one hundred eighty valid business reasons (180) days from not including avoidance of the date on which Company’s obligations hereunder), including without limitation the SEC declares such Demand Registration Statement effectiveacquisition or divestiture of assets, as such period may be extended pursuant capital raising activities, pending corporate developments and similar events, that postponing effectiveness is in the best interests of the Company, and prior to this Section 3.12(a)(ii)(B). The time period for which postponing the effectiveness the Company is required provides the Investor with written notice of such postponement, which notice need not specify the nature of the event giving rise to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementpostponement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Shareholder Agreements (Florida Gaming Corp), Stockholders Agreement (Prides Capital Partners, LLC)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given Subject to the Companylimitations contained in this Section 3, to requestat any time following the 30 month anniversary of the date of the closing of the Purchase Agreement, the Investor may at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, request that the Company register, under and in accordance with the provisions of the Securities Act, register for sale all or any portion 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 (i) 33.3% of the Registrable Securities designated held by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30on an as converted basis) days of on the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”)hereof. If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided 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, if the Company is not then eligible to register the Shares for resale on Form S-3, on another appropriate form in accordance with the Securities Act) to be filed within sixty (60) days after the date on which the initial request is given (provided, however, that no filing of a Demand Registration shall be made earlier than the 36 month anniversary of the date of the closing of the Purchase Agreement) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter covering all of the Registrable Securities 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 3.12(a)(ii3. Any registration initiated as a Demand Registration pursuant to Section 3(a) shall not be exercisable count as a Demand Registration unless and until the Effectiveness DeadlineRegistration 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 would reasonably be expected to result in an Adverse Disclosure or (ii) for up to ninety (90) days, if the 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.
(d) 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 based on an Adverse Disclosure 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 as the Investor and Company may mutually agree to act as the managing underwriter or underwriters in connection with such Underwritten Offering.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Carrols Restaurant Group, Inc.)
Demand Registration. (Ai) The Investor At any time after the 180th day after the Closing Date, any Holder that holds Registrable Securities (the “Initiating Holder”) shall have the option and right, exercisable by delivering a written notice to the Partnership (the a “Demand Notice”) given ), to require the Partnership to, pursuant to the Companyterms and subject to the limitations set forth in this Agreement, to request, at any time prepare and from time to time during such periods when file with the Commission a Shelf Registration Statement or Shelf Registration Statements covering all registering the offering and sale of the Investor’s number and type of Registrable Securities is or are not existing and effective, that on the Company register, under and terms set forth in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the InvestorDemand Notice (a “Demand Registration”). Upon receipt of a Demand Notice from any Initiating Holder (the Investor “Initiating Holder”), the Partnership shall file with the Commission as promptly as reasonably practicable a Registration Statement providing for the offer and sale of the Registrable Securities identified in such Demand Notice, which Registration Statement may, at the option of the Initiating Holder, be a Registration Statement that provides for the resale of the Registrable Securities from time to time pursuant to Rule 415 under the Securities Act in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. The Partnership shall have the right to elect that any Demand Registration be made pursuant to a Shelf Registration Statement. The Partnership shall use commercially reasonable efforts to cause such Registration Statement to become effective as soon as reasonably practicable after the initial filing of the Registration Statement and to remain effective and available for the resale of the Registrable Securities by the Selling Holders named therein for not less than six months following such Registration Statement’s effective date or such shorter period when all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that the Partnership shall not be required to effect the Registration of Registrable Securities pursuant to this Section 3.12(a)(ii2(a) unless at least an aggregate of Registrable Securities (as adjusted to reflect splits, combinations, dividends and recapitalizations) are offered or the Registrable Securities are offered at an aggregate proposed offering price of not less than $30 million. In the event the Partnership receives a Demand Notice from one or more Holders request that satisfies the conditions set forth in the immediately preceding sentence, the Partnership shall retain such underwriters and bookrunning managers as are mutually agreed by the Partnership and the Selling Holders in order to permit such Selling Holders to offer and sell the Registrable Securities set forth in the Demand Notice through an Underwritten Offering. The Partnership and such Selling Holders shall enter into an underwriting agreement in customary form and take all reasonable actions as are requested by the managing underwriters to facilitate the Underwritten Offering and sale of Registrable Securities therein. No Holder may participate in the Underwritten Offering unless it agrees to sell its Registrable Securities covered by the Registration Statement on the terms and conditions set forth in the underwriting agreement and completes and delivers all necessary documents and information reasonably required under the terms of such underwriting agreement or as the General Partner may determine is reasonably necessary to effect such Underwritten Offering. Any Holder may withdraw from such Underwritten Offering by notice to the Partnership and the managing underwriter, provided such notice is delivered prior to the launch of such Underwritten Offering.
(ii) Within five (5) Trading Days of the Partnership’s receipt of a Demand Notice, the Partnership shall give written notice of such Demand Notice to all Holders eligible to participate in the Demand Registration pursuant to this Section 2(a) (the “Demand Eligible Holders”). and shall, subject to the limitations of this Section 2(a), as promptly as is reasonably practicable, file a Registration Statement covering all of the Registrable Securities that the Demand Eligible Holders shall in writing request (such request to be given to the Partnership within five (5) Trading Days of receipt of such notice of the Demand Notice given by the Partnership pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as directed by the Initiating Holder in the Demand Notice.
(iii) Subject to the other limitations contained in this Agreement, the Partnership is not obligated hereunder to effect more than (A) one (1) Demand Registration on Form S-1 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period and (B) two (2) Demand Registrations on Form S-3 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period.
(iv) Notwithstanding any other provision of this Section 2(a), the Company Partnership shall promptly not be required to effect a registration or file a Registration Statement pursuant to this Section 2(a), and may suspend the use of an effective Registration Statement: (and in any event within thirty A) during the period starting with the date that is sixty (3060) days prior to the General Partner’s good faith estimate of the date on which the Company receives such Demand Notice) file with the SECof filing of, and ending on the Company shall thereafter use its best date that is ninety (90) days after the effective date of, a Partnership-initiated registration that is approved by the board of directors of the General Partner, provided that the Partnership is actively employing commercially reasonable efforts to cause such registration statement to become effective; (B) for a period of up to ninety (90) days after the date a Demand Notice is received by the Partnership pursuant to this Section 2(a) if the General Partner determines that the Partnership’s compliance with its obligations under this Agreement would be detrimental to the Partnership because such registration would be reasonably likely to (x) materially interfere with a significant acquisition, financing, merger, reorganization or other similar transaction involving the Partnership or otherwise have a material adverse effect on the Partnership, (y) require disclosure of material information that the Partnership has a bona fide business purpose for preserving as confidential or (z) render the Partnership unable to comply with requirements under applicable securities laws (any such period, a “Suspension Period”); provided, however, that in no event shall the Partnership postpone or defer any Demand Registration pursuant to this Section 2(a)(iv) for more than an aggregate of one hundred and eighty (180) days in any twelve (12) month period.
(v) Notwithstanding any other provision of this Section 2(a), in the event that the managing underwriter of an Underwritten Offering advises the Partnership and the Demand Eligible Holders in writing that, in such managing underwriter’s opinion, the inclusion of all or some Registrable Securities of Demand Eligible Holders in a subject Registration Statement would have a material adverse effect on the timing or success of the Underwritten Offering (including the price received for the securities to be declared effective as promptly as practicableoffered in such Underwritten Offering), the total number of Registrable Securities of each Demand Eligible Holder that shall be included in such Underwritten Offering shall be reduced on a registration statement Pro Rata basis until the total number of Registrable Securities offered in such Underwritten Offering will not, in the opinion of the managing underwriter, have such a material adverse effect. Any Registrable Securities excluded or withdrawn from such Underwritten Offering shall be withdrawn from the registration.
(vi) The Partnership may include in any such Demand Registration other Partnership Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter for the offering determines that the number of Partnership Securities proposed to be offered in such offering would have a material adverse effect on the timing or success of such offering (including the price received for the securities to be offered in such offering), then the Registrable Securities to be sold by the Demand Eligible Holders shall be included in such registration before any Partnership Securities proposed to be sold for the account of the Partnership or any other Person. Any such Registrable Securities to be offered in such offering shall be allocated among the Demand Eligible Holders on a Pro Rata basis.
(vii) Subject to the limitations contained in this Agreement, the Partnership shall effect any Demand Registration on Form S-3 (except if the Partnership is not then eligible to register for resale the Registrable Securities 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 the Partnership becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities through a firm commitment underwriting shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Partnership); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Partnership that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Partnership will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Partnership shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other 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 Demand Eligible Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and sale (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as shall may be selected necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be necessary or appropriate or reasonably requested by the Company and as shall be reasonably acceptable Demand Eligible Holders to the Investor registering enable such Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(which may be by an underwritten offeringix) In the event a Holder transfers Registrable Securities included on a Registration Statement in accordance with Section 7(e), of the total number of and such Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering remain Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate following such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement maytransfer, at the request of such Holder, the Holders submitting the Demand Notice, Partnership shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(Cx) The Company Partnership shall be entitled use commercially reasonable efforts to suspend become eligible to use Form S-3 and, after becoming eligible to use Form S-3, shall use commercially reasonable efforts to remain eligible to use Form S-3, including by timely filing all reports with the use Commission and meeting the other requirements of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d)Exchange Act.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hess Midstream Partners LP), Registration Rights Agreement (Hess Midstream Partners LP)
Demand Registration. If holders of at least twenty-five percent (A25%) The Investor of the outstanding Registrable Securities as of the date of original issuance of the Preferred Stock (the "Requisite Holders") shall have at any time make a written request (a "Demand Registration Request") to the rightCompany in compliance with this Section 2, the Company shall cause to be filed with the Commission a registration statement (a "Demand Registration Statement") under the Securities Act covering all or any part of the Registrable Securities (a "Demand Registration"), as such holders (the "Initiating Holders") shall request in writing; provided that
(i) any request made pursuant to this Section 2(b) by Requisite Holders shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered (which shall comprise at least 25% of the outstanding Registrable Securities as of date of original issuance of the Preferred Stock; provided however, and notwithstanding the provisions of Section 2b hereof, the holders of any number of Registrable Securities may make a Demand Registration Request for such Registrable Securities where such holders request registration of all of the remaining such Registrable Securities), the intended method of distribution thereof and that the request is for a Demand Registration pursuant to this Section 2(b);
(ii) As promptly as practicable, but no later than ten (10) days after receipt of a Demand Registration Request, the Company shall give written notice (the “"Demand Exercise Notice”") given of such Demand Registration Request to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all holders of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the InvestorSecurities. Upon receipt of Following a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)Registration Request, the Company shall promptly include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other holders of Registrable Securities who shall have made a written request to the Company for inclusion in any event such registration (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such holder) within thirty (30) days after the receipt of the date on which the Company receives such Demand Notice) file Exercise Notice (together with the SECInitiating Holders, and the "Electing Holders");
(iii) Following receipt of a Demand Registration Request, the Company shall thereafter use its best efforts to cause to be declared effective file the Demand Registration Statement with the Commission as promptly as reasonably practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take use all reasonable steps efforts to facilitate such distribution, including have the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement maydeclared effective under the Securities Act as soon as reasonably practicable, at in each instance giving due regard to the request of the Holders submitting the Demand Notice, be need to conduct due diligence and complete other actions that are reasonably necessary to effect a “shelf” registration pursuant to Rule 415, if available.
(B) The Company registered public offering and shall use all reasonable best efforts to keep each Demand such Registration Statement filed pursuant continuously effective, for up to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from or until such earlier date as of which all the date on which Registrable Securities under the SEC declares such Demand Registration Statement effective, as such period may shall have been disposed of in the manner described in the Registration Statement;
(iv) The Company shall not be extended obligated to effect more than two (2) Demand Registrations by Requisite Holders pursuant to this Section 3.12(a)(ii)(B2(b). The time A right to demand a registration pursuant to this Section 2(b) shall be deemed to have been satisfied upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been distributed pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been continuously effective for a 180-day period for which the Company is required to maintain or other period specified in Section 2(b)(iii) following the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated whereupon the 180-day period shall extend for the period which such stop order or similar order or proceedings for such order is in effect (C) The Company shall be entitled to suspend the use of any effective "Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(dPeriod").
(Dv) For If the avoidance Underwriter in connection with any underwritten offering described in this Section 2(b) shall have informed the Company that in its opinion the total number of doubtshares of Common Stock that the holders of the Registrable Securities, and any other Persons desiring to participate in such registration, intend to include in such offering is such as to materially and adversely affect the success and pricing of such offering, then the Company shall include in such Demand Registration (a) first, all Registrable Securities requested to be included in such registration by the Electing Holders of Registrable Securities; provided that if the number of shares of Common Stock so elected to be included in such registration by all Electing Holders of Registrable Securities exceeds the number recommended by the Underwriter, then the number of Registrable Securities to be so included in such registration will be reduced pro rata in accordance with the number of shares requested to be included by each Electing Holder, to such number recommended by the Underwriter; and (b) if all Registrable Securities so elected to be included by the Electing Holders are so included in such Registration, such additional number of shares of Common Stock that the Company desires to include in such registration and that the Underwriter has informed the Company may be included in such registration without adversely affecting the success and pricing of the offering of all the Registrable Securities so requested to be included therein; and
(vi) Notwithstanding anything herein to the contrary, the rights provided Company shall not be obligated to take any action to effect any such Demand Registration, qualification or compliance pursuant to this Section 3.12(a)(ii2(b) shall if: (i) the Board of Directors determines in the exercise of its reasonable good faith judgment that effecting such Demand Registration at such time would require disclosure of a material fact that would have a material adverse effect on any proposal or plan by the Company or any of its subsidiaries to engage in a significant transaction, then, in which case the Company may defer such Demand Registration for a single period not to exceed ninety (90) days once every twelve (12) months; (ii) in any particular jurisdiction in which the Company would be exercisable until required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Effectiveness DeadlineCompany is already subject to service in such jurisdiction and except as may be required by the Securities Act; or (iii) the Board of Directors determines in the exercise of its reasonable good faith judgment that effecting such Demand Registration at such time would otherwise have a material adverse effect on the Company, then, in such case the Company may defer (the "Deferral") such Demand Registration for a single period not to exceed ninety (90) days once during every twelve (12) months, but only on the condition that a deferral under clause (i) of this Section 2(b)(vi) does not occur during the twelve (12) month period proceeding or following the Deferral; provided, however that notwithstanding the restrictions contained in clauses (i) and (iii) of this Section 2(b)(vi) with respect to the number of deferrals of Demand Registrations in any twelve month period, the Company may defer a Demand Registration for a period not to exceed ninety (90) days at any time when the Board determines, in its reasonable good faith judgment, that a failure so to defer the Demand Registration would be a violation of its fiduciary duties.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Ibs Interactive Inc), Agreement and Plan of Reorganization (Infonautics Inc)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to requestIf a Purchaser is unable, at any time and from time following the six-month holding period provided in Rule 144, to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s sell its Registrable Securities is or are not existing and effectivepursuant to Rule 144, such Purchaser may demand, in writing, that the Company register, under prepare and in accordance file with the provisions Commission a “Shelf” Registration Statement covering the resale of the Securities Act, all or any portion of the Registrable Securities designated by (or the Investor. Upon receipt of maximum lesser amount as the Commission allows) for an offering to be made on a Demand Notice from the Investor continuous basis pursuant to this Section 3.12(a)(ii)Rule 415. Thereupon, the Company shall as expeditiously as practicable, and in any event on or prior to the Filing Date, use all commercially reasonable efforts to effect the registration on the Registration Statement of all Registrable Securities which the Company has been requested to so register. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith as the Purchasers may consent) and shall contain (except if otherwise directed by the Purchasers) the “Plan of Distribution” substantially in the form attached hereto as Exhibit C.
(b) The Company shall use commercially reasonable efforts to cause the Registration Statement to be declared effective by the Commission as promptly as possible after the filing thereof, but in any event prior to the Required Effectiveness Date, and shall use commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the fifth anniversary of the Effective Date or such earlier date when all Registrable Securities covered by such Registration Statement have been sold publicly or may be sold pursuant to Rule 144 (“Effectiveness Period”).
(c) The Company shall notify each Purchaser in writing promptly (and in any event within thirty one Trading Day) after receiving notification from the Commission that the Registration Statement has been declared effective.
(30d) days of As promptly as possible, and in any event no later than the date on which Post-Effective Amendment Filing Deadline, the Company receives such Demand Notice) shall prepare and file with the SEC, and the Commission a Post-Effective Amendment. The Company shall thereafter use its best efforts to cause the Post-Effective Amendment to be declared effective by the Commission as promptly as practicablepossible after the filing thereof, a registration statement but in any event prior to the fifteenth Trading Day after the Post-Effective Amendment Filing Deadline. The Company shall notify each Purchaser in writing promptly (and in any event within one business day) after receiving notification from the Commission that the Post-Effective Amendment has been declared effective.
(e) Upon the occurrence of any Event (as defined below) and on every monthly anniversary thereof until the appropriate form applicable Event is cured, as partial relief for the registration damages suffered therefrom by the Purchasers (which remedy shall not be exclusive of any other remedies available under this Agreement, at law or in equity), the Company shall pay to each Purchaser an amount in cash, as liquidated damages and sale not as a penalty, equal to 1.0% of the greater of (i) the aggregate purchase price paid by such Purchaser hereunder and (ii) the Market Value of the Shares then outstanding for the first month and 1.0% for each month such event exists or until there are no Registrable Securities issued and outstanding (whichever is earlier), prorated for any partial month. The payments to which a Purchaser shall be selected entitled pursuant to this Section 6.1(e) are referred to herein as “Event Payments”. Any Event Payment may, with the prior written consent of the Purchaser receiving such Event Payment, be paid by the Company and in Common Stock in lieu of cash (in such number of shares as shall be reasonably acceptable is equal to the Investor registering nearest whole number obtained by dividing the dollar value of the Event Payment to be made by the Closing Price on the day such Event Payment is made). Any Event Payments payable pursuant to the terms hereof shall apply on a pro-rata basis for any portion of a month prior to the cure of an Event. In the event the Company fails to make Event Payments in a timely manner, such Event Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. For such purposes, each of the following shall constitute an “Event”:
(i) the Registration Statement is not filed on or prior to the Filing Date or is not declared effective on or prior to the Required Effectiveness Date unless such occurrence is caused by the breach of Purchasers’ obligation to cooperate with the Company;
(ii) a Post-Effective Amendment is not filed on or prior to the Post-Effective Amendment Filing Deadline or is not declared effective on or prior to the fifteenth Trading Day after the Post-Effective Amendment Filing Deadline;
(iii) after the Effective Date, the Registration Statement (or a subsequent Registration Statement filed in replacement thereof) ceases to be effective or is suspended for five or more Trading Days (whether or not consecutive) during the Effectiveness Period (for any reason other than the requirement of the Company to file a Post-Effective Amendment and for such Post-Effective Amendment to be declared effective), except as otherwise permitted by this Agreement;
(iv) after the Effective Date, any Registrable Securities covered by such Registration Statement are not listed on an Eligible Market;
(v) the Common Stock is not listed or quoted, or is suspended from trading, on an Eligible Market for a period of three Trading Days (which need not be consecutive Trading Days), other than pursuant to Section 6.1(f);
(vi) the Company fails for any reason (other than any Purchaser's actions or omissions to act) to deliver a certificate evidencing any Securities to a Purchaser within three Trading Days after delivery of such certificate is required pursuant to any Transaction Document or the exercise rights of the Purchasers pursuant to the Transaction Documents are otherwise suspended for any reason; or
(vii) the Company fails to have available a sufficient number of authorized but unissued and otherwise unreserved shares of Common Stock available to issue Underlying Shares upon any exercise of the Warrants or, at any time following the Effective Date, any Shares or Underlying Shares are not listed on an Eligible Market.
(f) Following the Effective Date, if (i) there is material non-public information regarding the Company which the Company's Board of Directors (the “Board”) determines, in accordance its good faith judgment in reliance on the advice of counsel, not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of significant assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company that would require disclosure under the Exchange Act and with respect to which the Board has determined in its good faith judgment in reliance on the advice of counsel that compliance with this Agreement may reasonably be expected to either materially interfere with the intended method Company’s ability to consummate such transaction in a timely fashion or methods of distribution (which require the Company to disclose material, non-public information prior to such time as it would be required to be disclosed, then the Company may be by an underwritten offering), of the total number notice in writing to each holder of Registrable Securities specified by to which a Prospectus relates, require such holder to suspend, for up to 30 days (the Holders in such Demand Notice (a “Demand Registration StatementSuspension Period”). If , the Investor registering Registrable Securities intends use of any Prospectus included in a Registration Statement filed with the Commission pursuant to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise this Agreement; provided that the Company and the Company shall take all reasonable steps to facilitate such distributionmay not postpone, including the actions required pursuant to delay or suspend its obligation under this Section 3.12(c). The managing underwriters 6.1(f) more than 2 times in any such distribution shall be acceptable to the Investor registering Registrable Securities twelve-month period and in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableno event for more than 45 days in any twelve-month period.
(Bg) The Company shall use reasonable best efforts not, prior to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale Effective Date of the Registrable Registration Statement, prepare and file with the Commission a registration statement relating to an offering for its own account or the account of others under the Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness Act of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementits equity securities.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Securities Purchase Agreement (International Isotopes Inc), Securities Purchase Agreement (International Isotopes Inc)
Demand Registration. (Aa) The Investor shall have the rightSubject to Section 5 hereof, by written notice (the “Demand Notice”) given to the Company, to request, if at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that any Holder shall request the Company register, in writing to register under and in accordance with the provisions of the Securities Act, Act all or any portion a part of the Registrable Securities designated held by the Investor. Upon receipt of such Holder (a "Demand Notice from the Investor pursuant to this Section 3.12(a)(iiRegistration"), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best all reasonable efforts to cause to be filed and declared effective as promptly soon as practicable, reasonably practicable (but in no event later than the 45th day after such Holder's request is made) a registration statement statement, on the such appropriate form as the Company in its discretion shall determine, providing for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering of all such Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number such Holder. The Company agrees to use its reasonable efforts to keep any such registration statement continuously effective and usable for resale of Registrable Securities specified by for so long as the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Holder whose Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it are included therein shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c)request. The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts be obligated to keep each Demand Registration Statement 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 3.12(a)(ii2(a) continuously effective and usable for is hereinafter referred to as a "Demand Registration Statement."
(b) The Company agrees(i), unless it obtains the resale prior written consent of Hay, not to effect any public or private sale, distribution or 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 covered thereby 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 one hundred eighty (180) days from time, not to exceed 60 days, the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain filing or the effectiveness of any Demand Registration Statement shall be extended if the Board of Directors of the Company in good faith determines that (A) such registration might have a material adverse effect on any plan or proposal by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring Company with respect to such Demand Registration Statementany financing, acquisition, recapitalization, reorganization or other material transaction, or (B) the Company is in possession of material non-public information that, if publicly disclosed, could 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.
(Cd) The Company shall If at any time any Holder of Registrable Securities to be entitled to suspend the use of any effective covered by a Demand Registration Statement under this Section 3.12(a)(iidesires to sell Registrable Securities in an underwritten offering, such Holder shall have the right to select any nationally recognized investment banking firm(s) under to administer the circumstances set forth in Section 3.12(d).
(D) For offering, subject to the avoidance approval of doubtthe Company, the rights provided pursuant to this Section 3.12(a)(ii) which approval shall not be exercisable until unreasonably withheld, and the Effectiveness DeadlineCompany 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (Swisher International Group Inc), Registration Rights Agreement (Swisher International Group Inc)
Demand Registration. Upon the written request (A) The Investor shall have the right, by written notice (the a “Demand Notice”) given to by Holders collectively owning at least 10% the Companythen-outstanding Registrable Securities, to requestthe Partnership shall file with the Commission, as soon as reasonably practicable, but in no event more than 90 days following the 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 any time and 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 during such periods when a Shelf Registration Statement or Shelf by the Holders). There shall be no limit on the number of Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated may be required by the Investor. Upon receipt of a Demand Notice from the Investor Holders pursuant to this Section 3.12(a)(ii), the Company 2.01. The Partnership shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best commercially reasonable efforts to cause each Registration Statement to be declared effective by the Commission as promptly soon as practicable, a registration statement on reasonably practicable after the appropriate form initial filing of the Registration Statement. Any Registration Statement shall provide for the registration resale pursuant to any method or combination of methods legally available to, and sale as shall be selected by requested by, the Company Holders of any and as shall be reasonably acceptable to the Investor registering all such Registrable Securities in accordance with the intended method or methods of distribution (which may be covered by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company Partnership shall use its commercially reasonable best efforts to keep cause each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) 2.01 to be continuously effective effective, supplemented and usable amended to the extent necessary to ensure that it is available for the resale of all such Registrable Securities by the Holders until all such Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares by such Demand Registration Statement effective, as such period may have ceased to be extended pursuant to this Section 3.12(a)(ii)(BRegistrable Securities (the “Effectiveness Period”). The time period for which Each Registration Statement when effective (and the Company is documents incorporated therein by reference) shall comply as to form in all material respects 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 maintain be stated therein or necessary to make the effectiveness statements therein not misleading (in the case of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to prospectus contained in such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use , in light of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(dunder which a statement is made).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (Arc Logistics Partners LP), Registration Rights Agreement (Arc Logistics Partners LP)
Demand Registration. At any time following the last day of the Initial Restricted Period (A“Initial Restriction Expiration Date”), any Holder or Holders holding an aggregate of not less than 50% of the then outstanding Registrable Securities (“Initial Holders”) The Investor shall have the rightmay request, by written notice (the a “Demand NoticeDemand”) given to ETE, specifying the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by desired to be sold (which shall not be less than 10% of the Holders Registrable Securities, and which may not exceed the limits set forth in such Demand Notice Section 3.01 during the Final Restricted Period), that ETE prepare and file a registration statement under the Securities Act (a “Demand Registration Statement”) to permit the public resale of Registrable Securities either (a) in an Underwritten Offering or (b) from time to time as permitted by Rule 415 under the Securities Act (either, a “Demand Registration”). If Promptly upon receipt of a Demand, ETE shall give written notice thereof to all other Holders. All such Holders who notify ETE in writing within fifteen (15) days after the Investor registering Registrable Securities intends date of such notice that they desire to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering include Registrable Securities in such underwritten offering. Any the Demand Registration Statement may, at shall be permitted to do so. ETE shall use its commercially reasonable efforts to cause a Demand Registration Statement to become effective no later than 180 days after the request date of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand. A Demand Registration Statement filed pursuant to this Section 3.12(a)(ii2.01(a) shall be on such appropriate registration form of the Commission as shall be selected by ETE; provided, however, that if a prospectus or a prospectus supplement will be used in connection with the marketing of an Underwritten Offering from the Demand Registration Statement and the Managing Underwriter selected by the Selling Holders at any time shall notify ETE in writing that, in the sole judgment of such Managing Underwriter, inclusion of detailed information to be used in such prospectus or prospectus supplement is of material importance to the success of the Underwritten Offering of such Registrable Securities, ETE shall use its commercially reasonable efforts to include such information in such a prospectus or prospectus supplement. In the case of a shelf registration, ETE will cause a Demand Registration Statement filed pursuant to this Section 2.01(a) to be continuously effective and usable for under the resale of the Securities Act until all Registrable Securities covered thereby for a period of one hundred eighty (180) days from by the date on which Demand Registration Statement have been distributed in the SEC declares manner set forth and as contemplated in the Demand Registration Statement or there are no longer any Registrable Securities outstanding covered by such Demand Registration Statement (the “Effectiveness Period”). The Demand Registration Statement when declared effective (including the documents incorporated therein by reference) will comply as to form with all applicable requirements of the Securities Act and will 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. As soon as practicable following the date a Demand Registration Statement becomes effective, as but in any event within two Business Days after such period may be extended date, ETE shall provide the Selling Holders with written notice thereof. ETE is obligated to effect only three (3) Demand Registrations pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement2.01.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Unitholder Rights and Restrictions Agreement (Energy Transfer Equity, L.P.), Unitholder Rights and Restrictions Agreement (Enterprise GP Holdings L.P.)
Demand Registration. (Ai) The Investor At any time after the Effective Date, any Holder that holds Registrable Securities (the “Initiating Holder”) shall have the option and right, exercisable by delivering a written notice to the Company (the a “Demand Notice”) given ), to require the Company to, pursuant to the Companyterms and subject to the limitations set forth in this Agreement, to request, at any time prepare and from time to time during such periods when file with the Commission a Shelf Registration Statement or Shelf Registration Statements covering all registering the offering and sale of the Investor’s number and type of Registrable Securities is or are not existing and effective, that on the Company register, under and terms set forth in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the InvestorDemand Notice (a “Demand Registration”). Upon receipt of a Demand Notice from any Initiating Holder (the Investor pursuant to this Section 3.12(a)(ii“Initiating Holder”), the Company shall file with the Commission as promptly (as reasonably practicable a Registration Statement providing for the offer and in any event within thirty (30) days sale of the Registrable Securities identified in such Demand Notice, which Registration Statement may, at the option of the Initiating Holder, be a Registration Statement that provides for the resale of the Registrable Securities from time to time pursuant to Rule 415 under the Securities Act in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. The Company shall have the right to elect that any Demand Registration be made pursuant to a Shelf Registration Statement. The Company shall use commercially reasonable efforts to cause such Registration Statement to become effective as soon as reasonably practicable after the initial filing of the Registration Statement and to remain effective and available for the resale of the Registrable Securities by the Selling Holders named therein for not less than six months following such Registration Statement’s effective date on which or such shorter period when all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that the Company shall not be required to effect the registration of Registrable Securities pursuant to this Section 2(a) unless at least an aggregate of 1,500,000 Registrable Securities (as adjusted to reflect splits, combinations, dividends and recapitalizations) are offered or the Registrable Securities are offered at an aggregate proposed offering price of not less than $30 million. In the event the Company receives such a Demand Notice) file with Notice from one or more Holders request that satisfies the SECconditions set forth in the immediately preceding sentence, and the Company shall thereafter use its best efforts to cause to be declared effective retain such underwriters and bookrunning managers as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected are mutually agreed by the Company and the Selling Holders in order to permit such Selling Holders to offer and sell the Registrable Securities set forth in the Demand Notice through an Underwritten Offering. The Company and such Selling Holders shall enter into an underwriting agreement in customary form and take all reasonable actions as are requested by the managing underwriters to facilitate the Underwritten Offering and sale of Registrable Securities therein. No Holder may participate in the Underwritten Offering unless it agrees to sell its Registrable Securities covered by the Registration Statement on the terms and conditions set forth in the underwriting agreement and completes and delivers all necessary documents and information reasonably required under the terms of such underwriting agreement or as the General Partner may determine is reasonably necessary to effect such Underwritten Offering. Any Holder may withdraw from such Underwritten Offering by notice to the Company and the managing underwriter, provided such notice is delivered prior to the launch of such Underwritten Offering.
(ii) Within five (5) Trading Days of the Company’s receipt of a Demand Notice, the Company shall give written notice of such Demand Notice to all Holders eligible to participate in the Demand Registration pursuant to this Section 2(a) (the “Demand Eligible Holders”). and shall, subject to the limitations of this Section 2(a), as promptly as is reasonably practicable, file a Registration Statement covering all of the Registrable Securities that the Demand Eligible Holders shall in writing request (such request to be given to the Company within five (5) Trading Days of receipt of such notice of the Demand Notice given by the Company pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as directed by the Initiating Holder in the Demand Notice.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect more than (A) one (1) Demand Registration on Form S-1 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period and (B) two (2) Demand Registrations on Form S-3 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period.
(iv) Notwithstanding any other provision of this Section 2(a), the Company shall not be required to effect a registration or file a Registration Statement pursuant to this Section 2(a), and may suspend the use of an effective Registration Statement: (A) during the period starting with the date that is sixty (60) days prior to the General Partner’s good faith estimate of the date of filing of, and ending on the date that is ninety (90) days after the effective date of, a Company-initiated registration that is approved by the board of directors of the General Partner, provided that the Company is actively employing commercially reasonable efforts to cause such registration statement to become effective; (B) for a period of up to ninety (90) days after the date a Demand Notice is received by the Company pursuant to this Section 2(a) if the General Partner determines that the Company’s compliance with its obligations under this Agreement would be detrimental to the Company because such registration would be reasonably likely to (x) materially interfere with a significant acquisition, financing, merger, reorganization or other similar transaction involving the Company or otherwise have a material adverse effect on the Company, (y) require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential or (z) render the Company unable to comply with requirements under applicable securities laws (any such period, a “Suspension Period”); provided, however, that in no event shall the Company postpone or defer any Demand Registration pursuant to this Section 2(a)(iv) for more than an aggregate of one hundred and eighty (180) days in any twelve (12) month period.
(v) Notwithstanding any other provision of this Section 2(a), in the event that the managing underwriter of an Underwritten Offering advises the Company and the Demand Eligible Holders in writing that, in such managing underwriter’s opinion, the inclusion of all or some Registrable Securities of Demand Eligible Holders in a subject Registration Statement would have a material adverse effect on the timing or success of the Underwritten Offering (including the price received for the securities to be offered in such Underwritten Offering), the total number of Registrable Securities of each Demand Eligible Holder that shall be reasonably acceptable included in such Underwritten Offering shall be reduced on a Pro Rata basis until the total number of Registrable Securities offered in such Underwritten Offering will not, in the opinion of the managing underwriter, have such a material adverse effect. Any Registrable Securities excluded or withdrawn from such Underwritten Offering shall be withdrawn from the registration.
(vi) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter for the offering determines that the number of Company Securities proposed to be offered in such offering would have a material adverse effect on the timing or success of such offering (including the price received for the securities to be offered in such offering), then the Registrable Securities to be sold by the Demand Eligible Holders shall be included in such registration before any Company Securities proposed to be sold for the account of the Company or any other Person. Any such Registrable Securities to be offered in such offering shall be allocated among the Demand Eligible Holders on a Pro Rata basis.
(vii) Subject to the Investor registering limitations contained in this Agreement, the Company shall effect any Demand Registration on Form S-3 (except if 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 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 or any equivalent or successor form under the Securities Act (if available to the Company); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as the Demand Eligible Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be necessary or appropriate or reasonably requested by the Demand Eligible Holders to enable such Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(which may be by an underwritten offeringix) In the event a Holder transfers Registrable Securities included on a Registration Statement in accordance with Section 7(e), of the total number of and such Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering remain Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate following such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement maytransfer, at the request of such Holder, the Holders submitting the Demand Notice, Company shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415, if availablesuch Registration Statement.
(Bx) The Company shall use commercially reasonable best efforts to keep each Demand Registration Statement filed pursuant become eligible to this Section 3.12(a)(ii) continuously effective use Form S-3 and, after becoming eligible to use Form S-3, shall use commercially reasonable efforts to remain eligible to use Form S-3, including by timely filing all reports with the Commission and usable for meeting the resale other requirements of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementExchange Act.
(Cxi) The Company shall Whenever an Underwritten Offering has been initiated, each Holder participating in such Underwritten Offering shall, if applicable, cause such Registrable Securities to be entitled to suspend redeemed or exchanged for Class A Shares in accordance with the use terms of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d)HESM Agreement before or substantially concurrently with the sale of such Registrable Securities.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hess Midstream LP), Partnership Restructuring Agreement (Hess Midstream Partners LP)
Demand Registration. (Aa) The Investor At any 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, Capital Research shall have the right, exercisable by making a written notice request (the “Demand Notice”"REGISTRATION REQUEST") given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, demand that the Company register, under and effect the Registration of any Registrable Securities in accordance with the provisions of the Securities Act. Upon receipt of the Registration Request, all or any portion the Company shall be obligated to register each of the Registrable Securities designated beneficially owned by Capital Research in the Investormanner set forth in Section 2(b) hereof. Upon receipt of a Demand Notice from Any provision herein to the Investor contrary notwithstanding, the right to demand Registration pursuant to this Section 3.12(a)(ii)2 shall be limited to one (1) Registration demand. A right to demand Registration hereunder shall be deemed to have been exercised and all of the Company's demand Registration obligations hereunder shall be deemed to be 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 promptly (and in any event i) file within thirty ninety (3090) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form under the Act for the registration 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 sale as shall be selected by 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 as shall be reasonably acceptable Capital Research to indemnify and provide contribution to the Investor registering Registrable Securities in accordance with the intended method underwriter or methods underwriters of distribution such Offering); and (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(Biii) The Company shall use its reasonable best efforts to keep each Demand Registration Statement filed pursuant have such registration statement declared effective as promptly as practicable and to this Section 3.12(a)(iiremain effective for at least One Hundred and Twenty (120) continuously effective days. Notwithstanding any other provision hereof, Capital Research acknowledges and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days agrees that there can be no guarantee or warranty from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which or by the Company is required to maintain the effectiveness of that any Demand Registration Statement shall such registration statement will ever be extended declared effective by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to Commission, and that the Company makes no such Demand Registration Statementguarantee or warranty in this Agreement or otherwise.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (Genetic Vectors Inc), Registration Rights Agreement (Genetic Vectors Inc)
Demand Registration. (A) The During the Effectiveness Period and after the filing and effectiveness of the Initial Registration Statement and any Follow-On Registration Statement covering all of the Initial Registrable Securities, Investor shall have the right, by right to provide the Company with written notice (the each a “Demand Notice”) given requiring the Company to the Company, to request, at any time and from time to time during such periods when a Shelf file an Additional Registration Statement or Shelf Registration Statements covering all such number of the Investor’s Additional Registrable Securities is or are not existing and effective, that the Company register, under and as Investor requests in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a subject to Section 2(b)(2) (the “shelf” registration pursuant to Rule 415Demand Registrable Securities”), if available.as follows:
(Bi) The if Investor has sold all of the Initial Registrable Securities, Investor shall have the right to require the Company shall use reasonable best efforts to keep each Demand prepare and file an Additional Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for covering the resale of the Demand Registrable Securities covered thereby for a period of one hundred eighty within sixty (18060) days from of (i) the effective date of the Initial Registration Statement, or any Follow-On Registration Statement, or (ii) the date on which of the SEC declares such Demand Registration Statement effectiveNotice, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company whichever is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementlater.
(Cii) The if Investor has not sold all of the Initial Registrable Securities, Investor shall have the right to require the Company shall be entitled to suspend the use of any effective prepare and file an Additional Registration Statement under this Section 3.12(a)(iicovering the resale of the Demand Registrable Securities within ninety (90) under days of (i) the circumstances set forth in Section 3.12(d)effective date of the Initial Registration Statement, or any Follow-On Registration Statement, or (ii) the date of the Demand Notice, whichever is later.
(Diii) For if Investor has sold all of the avoidance of doubt, the rights provided Demand Registrable Securities registered pursuant to this Section 3.12(a)(iian Additional Registration Statement, Investor shall have the right to require the Company to prepare and file an Additional Registration Statement covering the resale of additional Demand Registrable Securities within sixty (60) days of (i) the effective date of the of the previous Additional Registration Statement, or (ii) the date of the Demand Notice, whichever is later.
(iv) if Investor has not sold all of the Demand Registrable Securities registered pursuant to an Additional Registration Statement, Investor shall not be exercisable until have the Effectiveness Deadlineright to require the Company to prepare and file an Additional Registration Statement covering the resale of additional Demand Registrable Securities within ninety (90) days of (i) the effective date of the of the previous Additional Registration Statement, or (ii) the date of the Demand Notice, whichever is later.
Appears in 2 contracts
Sources: Registration Rights Agreement (Janus Resources, Inc.), Registration Rights Agreement (New Energy Technologies, Inc.)
Demand Registration. If at any time after the Market Stand-Off Period Novo Nordisk and Novo Nordisk Pharmaceuticals, Inc. desire to effect the registration on Form S-3 or other applicable form under the 1933 Act of any of the Shares owned by them or any of their Affiliates (A“Registrable Shares”), they may make one (1) The Investor shall have the right, by written notice request (the “Demand NoticeRequest”) given that Aradigm effect such registration; provided that such request is made no earlier than (i) sixty (60) days prior to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all expiration of the Investor’s Registrable Securities is Market Stand-Off Period or are not existing (ii) sixty (60) days prior to the expiration of any “lock-up” period required of Novo Nordisk and effectiveNovo Nordisk Pharmaceuticals, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated Inc. by the Investorunderwriters in connection with a public offering by Aradigm. The Demand Request will specify the number of Registrable Shares proposed to be sold and will also specify the intended method of disposition thereof. Upon receipt of a such Demand Notice from the Investor pursuant to this Section 3.12(a)(iiRequest, Aradigm shall, at its own expense (which expense shall include all fees and expenses of counsel, public accountants or other advisors or experts retained by Aradigm, all reasonable fees and expenses of counsel for Novo Nordisk, Novo Nordisk Pharmaceuticals, Inc. and their Affiliates (which counsel shall be selected by Novo Nordisk and Novo Nordisk Pharmaceuticals, Inc.) in an amount which shall not exceed fifty thousand dollars ($50,000), all filing fees, all fees and expenses incurred to comply with blue sky or other securities laws, all printing expenses and all internal expenses of Aradigm, but shall not include underwriting fees, discounts or commissions attributable to the Company shall promptly (and in any event within thirty (30) days sale of the date on which Registrable Shares, out-of-pocket expenses of Novo Nordisk, Novo Nordisk Pharmaceuticals, Inc. or any of their Affiliates, transfer taxes or the Company receives such Demand Noticefees and expenses of underwriter’s counsel) prepare and file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, SEC a registration statement on Form S-3 or other applicable form (the appropriate form “Resale Registration Statement”) under the 1933 Act to provide for the registration resale by Novo Nordisk, Novo Nordisk Pharmaceuticals, Inc. and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), their Affiliates of the total number of Registrable Securities Shares specified by in the Holders in such Demand Notice (Request. In the event Novo Nordisk and Novo Nordisk Pharmaceuticals, Inc. deliver to Aradigm a Demand Request prior to the end of a Market Stand-Off Period or a “Demand lock-up” period, Aradigm shall use its reasonable efforts to file and cause the Resale Registration Statement”). If the Investor registering Registrable Securities intends Statement to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable effective prior to the Investor registering Registrable Securities in expiration of such underwritten offeringMarket Stand-Off Period or “lock-up” period, as the case may be. Any Demand In all other cases, Aradigm will use its reasonable efforts to cause the Resale Registration Statement may, at the request to be filed and become effective as soon as reasonably practicable after receipt of the Holders submitting Demand Request. Aradigm shall cause the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Resale Registration Statement filed pursuant to this Section 3.12(a)(ii1.4 to remain effective for no less than six (6) continuously effective and usable for months (or, if earlier, until the resale date all of the Registrable Securities Shares covered thereby for a period of one hundred eighty (180) days from by the date on which the SEC declares such Demand Resale Registration Statement effectivehave been sold); provided, as however, Aradigm may suspend the use of, or delay the effective date of, any Resale Registration Statement by giving written notice to the sellers identified therein, if Aradigm shall have determined, in its good faith reasonable judgment, that such period may suspension or delay in the effective date of the Resale Registration Statement is advisable because the filing or effectiveness of the Resale Registration Statement would be extended detrimental to Aradigm and its shareholders; and provided further that Aradigm suspends the use of or delays the effective date of all other registration statements of Aradigm that register the securities of Aradigm being or to be resold by the holders thereof. Any suspension or delay in the effective date of the Resale Registration Statement by Aradigm pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement 1.4 shall be extended by for the aggregate number shortest reasonable period of days of all suspension periods pursuant to Section 3.12(dtime (but shall not exceed one hundred twenty (120) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(ddays).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Restructuring Agreement (Aradigm Corp), Restructuring Agreement (Aradigm Corp)
Demand Registration. (Aa) The Investor shall have Following the rightLock-up Release Date, by written notice (the “Demand Notice”) given to the Company, to request, if at any time and from time the Shelf Registration Statement pursuant to time during such periods when Section 6.01 is not available for the resale of the Registrable Securities, including if for any reason the Company is ineligible to maintain or use a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effectiveStatement, that the Company registershall use reasonable best efforts to (as promptly as reasonably practicable and, in any event, within (i) 45 days in the case of a Registration Statement on Form S-3 or (ii) 60 days in the case of a Registration Statement on Form S-1) following the written request of Sponsor Stockholder for Registration under and in accordance with the provisions of the Securities Act, Act of all or any portion part of the Registrable Securities designated by (a “Demand Request”), file a Registration Statement with the Investor. Upon receipt SEC (a “Demand Registration Statement”) with respect to resales of a Demand Notice from the Investor Registrable Securities pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days Sponsor Stockholder’s intended method of the date on which the Company receives such Demand Notice) file with the SECdistribution thereof, and shall, subject to the Company shall thereafter terms of this Article VI, use its reasonable best efforts to cause such Demand Registration Statement to be declared effective under the Securities Act (promptly and, in any event, no later than 60 days after such filing) and, if required, to qualify under the “blue sky” laws of such jurisdictions as promptly as practicableSponsor Stockholder or any underwriter reasonably requests; provided that such Demand Registration Statement shall be filed on (A) Form S-3, a registration statement on if the Company is then S-3 Eligible, or (B) any other appropriate form under the Securities Act for the registration and sale as shall be selected type of offering contemplated by Sponsor Stockholder, if the Company and as is not then S-3 Eligible. Each Demand Request shall be reasonably acceptable to specify the Investor registering Registrable Securities in accordance with to be Registered, their aggregate amount, and the intended method or methods of distribution (which thereof. Sponsor Stockholder agrees to provide the Company with such information in connection with a Demand Request as may be reasonably requested by an underwritten offering), the Company to ensure that the Demand Registration Statement complies with the requirements of the total number of Registrable Securities specified by Act. Notwithstanding anything in this Agreement to the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringcontrary, it shall promptly so advise the Company and the Company shall take all reasonable steps only be obligated to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each file and cause up to three Demand Registration Statement filed Statements to be declared effective under the Securities Act within any 365-day period pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement6.02.
(Cb) The Company shall be entitled deemed to suspend have effected a Demand Registration for purposes of this Section 6.02, Section 6.03(a) and Section 6.04(a) if the use of any effective Demand Registration Statement under becomes effective by the SEC and remains effective until the earlier of (i) 90 days after the effective date or (ii) such time as all Registrable Securities covered by such Registration Statement have been sold or withdrawn in accordance with this Section 3.12(a)(ii) under 6.02, or if such Registration Statement relates to an Underwritten Offering (as defined below), such longer period as, in the circumstances set forth opinion of outside legal counsel for the underwriter or underwriters, a Prospectus is required by law to be delivered in Section 3.12(d).
connection with sales of Registrable Securities by an underwriter or dealer (D) For the avoidance of doubtapplicable period, the rights “Demand Period” ); provided that (i) if, during the Demand Period, such Registration or the successful completion of the relevant sale is prevented by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, or a Blackout Period or the need to update or supplement the Registration Statement, the Demand Period shall be extended on a day-for-day basis by the number of days such Registration or successful completion is prevented and (ii) no Demand Registration shall be deemed to have been effective for purposes of Section 6.03(a) and Section 6.04(a) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with any Underwritten Offering pursuant to this Section 3.12(a)(ii) shall such Demand Registration are not be exercisable until the Effectiveness Deadlinesatisfied other than by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement by Sponsor Stockholder.
Appears in 2 contracts
Sources: Stockholders Agreement (Amentum Holdings, Inc.), Stockholders Agreement (Amazon Holdco Inc.)
Demand Registration. (Ai) The Investor At any time after the expiration of the Lock-Up Period, any Sponsoring Holder shall have the option and right, exercisable by delivering a written notice to the Company (the a “Demand Notice”) given ), to require the Company to, pursuant to the Companyterms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to request, at any time and from time Rule 415 pursuant to time during such periods when a Shelf Registration Statement
(a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Sponsoring Holder and its Affiliates to be included therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $50 million (the “Minimum Amount”).
(ii) Within fifteen Business Days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within forty-five days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all commercially reasonable efforts to cause such Registration Statement to become 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, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering, or Shelf (B) a subsequent Demand Registration Statements pursuant to a Demand Notice if a Registration Statement covering all of the Investor’s Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is or are not existing sufficient to permit offers and effective, that sales of the Company register, under number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the provisions intended timing and method or methods of distribution thereof specified in the Securities ActDemand Notice. No Demand Registration shall be deemed to have occurred for purposes of this Section 2(a)(iii) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand Registration in lieu thereof.
(iv) A Holder may withdraw all or any portion of the its Registrable Securities designated by included in a Demand Registration from such Demand Registration at any time prior to the Investoreffectiveness of the applicable Registration Statement. Upon receipt of a Demand Notice notice from the Investor pursuant Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder to this Section 3.12(a)(ii)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 promptly 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) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any event within thirty (30) days of the date on which the Company receives such Demand NoticeRegistration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 3(c)(iii).
(vi) file with Subject to the SEClimitations contained in this Agreement, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a effect any Demand Registration on such appropriate registration statement on form of the appropriate form for the registration and sale Commission (A) as shall be selected by the Company and (B) as shall be reasonably acceptable to permit the Investor registering disposition of the Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering)disposition specified in the Demand Notice; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the total number Demand Registration for any offering and selling of Registrable Securities specified shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders in to enable the Holders to consummate a public sale of such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand 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 mayand such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Holders submitting the Demand Notice, Company shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415such 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, if available.
Affiliates of the Holder or transferees of the Holder or (B) The the Company shall use reasonable best efforts to keep each Demand has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for Statement, other than the resale Holder, Affiliates of the Registrable Securities covered thereby for a period Holder or transferees of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementHolder.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (Jagged Peak Energy Inc.), Registration Rights Agreement (Jagged Peak Energy Inc.)
Demand Registration. (Aa) The Investor shall have the right, by written notice Each Important Shareholder (the “Demand NoticeRequesting Holder”) given to may request registration (a “Demand Registration”) under the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement Securities Act of all or Shelf Registration Statements covering all part of its Registrable Securities. Each request must specify the Investor’s number of Registrable Securities for which registration is requested and the intended method or are not existing and effective, that the Company register, under and in accordance with the provisions methods of the Securities Act, all or any portion of the Registrable Securities designated by the Investordistribution thereof. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)such request, the Company shall promptly (but no later than (10) days following receipt thereof) deliver notice of such request to all other Holders, who shall then have fifteen (15) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration (the Requesting Holder and any Holder that delivers such writing to the Company, the “Selling Holders”). The Company shall use its reasonable best efforts, after receipt of such written requests, to file with the SEC at the earliest practicable date, but in any event within not later than (i) sixty (60) days after the receipt of such notice or (ii) if, as of such sixtieth (60th) day, the Company does not have audited financial statements required to be included in the registration statement, thirty (30) days of the date on which after receipt by the Company receives from its independent public accountants of such Demand Notice) file with the SECaudited financial statements, and the Company shall thereafter use its reasonable best efforts to cause to be declared effective as promptly as practicable, a registration statement on (a “Demand Registration Statement”) relating to all of the appropriate form for the registration and sale as shall be selected by Registrable Securities that the Company and as shall be reasonably acceptable has been so requested to register for sale, to the Investor registering Registrable Securities extent required to permit the disposition (in accordance with the intended method or methods of distribution thereof) of the Registrable Securities so registered; provided that the Company shall not be required to file a Demand Registration Statement unless the aggregate offering value of the Registrable Securities requested to be registered by the Selling Holders is at least $10,000,000.
(b) The Company shall not include in any Demand Registration any securities which may are not Registrable Securities without the prior written consent of the Selling Holders holding a majority of the Registrable Securities proposed to be by included in the offering. If the Demand Registration relates to an underwritten offering)public offering and the managing underwriter of such proposed public offering advises the Company and the Selling Holders in writing that, of in its reasonable and good faith opinion, the total number of Registrable Securities specified requested to be included in the Demand Registration (including securities to be sold by the Holders Company or any other security holder) exceeds the largest number of securities which reasonably can be sold in such offering without having a material adverse effect on such offering, including the price at which such securities can be sold (the “Maximum Offering Size” ), then the Company shall include in such Demand Notice (a “Demand Registration Statement”)Registration, up to the Maximum Offering Size, first, the Registrable Securities the Selling Holders propose to register, and second, any securities the Company proposes to register and any securities with respect to which any other security holder has requested registration. If the Investor registering managing underwriter determines that less than all of the Registrable Securities intends proposed to distribute any be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective Selling Holders thereof on the basis of Registrable Securities sought to be registered by means of an underwritten offering, it shall promptly so advise the Company and the each Selling Holder. The Company shall take all reasonable steps to facilitate such distribution, including not hereafter enter into any agreement which is inconsistent with the actions required pursuant to rights of priority provided in this Section 3.12(c2.1(b). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(Bc) The Company Each Important Shareholder shall use reasonable best efforts be entitled to keep each an aggregate of three (3) Demand Registration Statement filed Registrations pursuant to this Section 3.12(a)(ii2.1; provided that a Demand Registration requested pursuant to this Section 2.1 shall not be deemed to have been effected for purposes of this Section 2.1(c) continuously unless (i) it has been declared effective by the SEC and usable for the resale all of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares Selling Holders included in such Demand Registration Statement effectivehave actually been sold thereunder, (ii) it has remained effective for the period set forth in Section 2.5(a) and (iii) the offering of Registrable Securities pursuant to such registration is not subject to any stop order, injunction or other order or requirement of the SEC; provided that if a Requesting Holder revokes a Demand Registration pursuant to Section 2.4 hereof, such Demand Registration shall not count as one of the permitted Demand Registration requests; and provided further that, in the event the Requesting Holder revokes a Demand Registration request (which revocation may only be made prior to the Company requesting acceleration of effectiveness of the registration statement) for a reason other than as stated in Section 2.4 hereof, then such period may be extended Demand Registration shall count as having been effected unless the Requesting Holder pays all Registration Expenses in connection with such revoked Demand Registration within twenty-one (21) days of written request therefor by the Company.
(d) If after any Demand Registration Statement requested pursuant to this Section 3.12(a)(ii)(B). The time period for which 2.1 becomes effective, such Demand Registration Statement is interfered with by any stop order, injunction or other order or requirement of the Company is required SEC or other governmental agency or court solely due to maintain the effectiveness actions or omissions to act of any the Company, such Demand Registration Statement shall be extended by at the aggregate number sole expense of days the Company and shall not be included as one of all suspension periods pursuant to Section 3.12(d) occurring with respect to such the Demand Registration Statement.
(C) The Company shall Registrations which may be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided requested pursuant to this Section 3.12(a)(ii2.1.
(e) Notwithstanding anything to the contrary contained herein, the Company shall not be exercisable until required to prepare and file (i) more than two (2) Demand Registration Statements in any twelve (12) month period, or (ii) any Demand Registration Statement within one hundred and twenty (120) days following the Effectiveness Deadlinedate of effectiveness of any other Registration Statement.
Appears in 2 contracts
Sources: Investor Rights Agreement (E-House (China) Holdings LTD), Investor Rights Agreement (Leju Holdings LTD)
Demand Registration. (A) The Investor A. Each of the Anchor Investors shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Anchor Investors’ Registrable Securities is or are not existing and effective, that the Company register, register under and in accordance with the provisions of the Securities Act, Act all or any portion of the Registrable Securities designated by the such Anchor Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)Notice, the Company shall promptly (and in any event within thirty ten (3010) Business Days from the date of receipt of such Demand Notice), notify the other Anchor Investor of the receipt of such Demand Notice and allow such other Anchor Investor the opportunity to include Registrable Securities held by such Anchor Investor in the proposed registration by submitting its own Demand Notice. The Company, within 45 days of the date on which the Company receives such earlier Demand Notice) , shall file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor Anchor Investors registering Registrable Securities Securities, in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor Anchor Investors registering Registrable Securities intends intend to distribute any Registrable Securities by means of an underwritten offering, it they shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c3.14(c). The managing underwriters in any such distribution shall be acceptable to selected by the Investor Anchor Investors registering Registrable Securities in such underwritten offeringSecurities. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) B. The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii3.14(a)(2) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B3.14(a)(2)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d3.14(d) occurring with respect to such Demand Registration Statement.
(C) C. The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii3.14(a)(2) under the circumstances set forth in Section 3.12(d3.14(d).
(D) D. For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii3.14(a)(2) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Investment Agreement (Hampton Roads Bankshares Inc), Investment Agreement (Hampton Roads Bankshares Inc)
Demand Registration. (A) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii3.13(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its reasonable best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c3.13(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii3.13(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B3.13(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d3.13(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii3.13(a)(ii) under the circumstances set forth in Section 3.12(d3.13(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii3.13(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Investment Agreement (FNB United Corp.), Investment Agreement (FNB United Corp.)
Demand Registration. (A) The Investor shall have In addition, to the rightextent the Company does not maintain an effective registration statement for the Registrable Securities at any time when it is eligible to use a Form S-3 registration statement, by written notice then the Holders (the “Demand NoticeDemanding Holders”) given may make a written request to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all Company for the registration of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any a portion of the Registrable Securities designated (the “Demand Registration”). Such written request shall specify the aggregate number of Registrable Securities to be registered. If the Demanding Holders intend to distribute the Registrable Securities covered by their request by means of an underwritten public offering, they shall so advise the InvestorCompany as a part of their written request. Upon receipt of a Demand Notice from Notwithstanding the Investor pursuant to this Section 3.12(a)(ii)foregoing, the Company shall promptly not be obligated to effectuate any Demand Registration unless the aggregate value of the Registrable Securities to be registered on such registration statement is at least $50,000,000 (and in any based on the market price of the Company’s publicly-traded class or series of common stock listed as of the date of the Demand Registration request). In the event of a Demand Registration, the Company shall use its commercially reasonable efforts to register the applicable Registrable Securities within thirty (30) days after receiving the Demand Registration. The Demanding Holders of the date Registrable Securities proposing to distribute their securities through a Demand Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Demand Registration. The selection of the underwriters shall be subject to the Company’s prior approval (which shall not be unreasonably withheld, conditioned or delayed). Furthermore, each Holder must provide the Selling Holder Information to be included in the registration statement timely or the Company may elect to exclude such Holder from the registration statement. The Company shall not be obligated to effect (A) more than one (1) Demand Registration on an non-underwritten basis per consecutive 12-month period and (B) more than one (1) Demand Registration on an underwritten basis per consecutive 12-month period, not to exceed a maximum of three (3) Demand Registrations on an underwritten basis in the aggregate. In an underwritten offering, if the managing underwriter(s) advise the Company that the dollar amount or number of the Registrable Securities that the Demanding Holders desire to sell, taken together with all of the other securities which the Company receives such Demand Notice) file with desires to sell or for which registration has been requested pursuant to written contractual piggy-back registration rights held by other stockholders, exceeds the SECMaximum Number of Securities, and then the Company shall thereafter use its best efforts to cause limit the securities to be declared effective as promptly as practicableincluded in such underwritten offering to: (x) first, the Registrable Securities of the Demanding Holders pro rata based on the number of securities requested to be sold that can be sold without exceeding the Maximum Number of Securities; (y) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (x), the securities that the Company desires to sell for its own account, which can be sold without exceeding the Maximum Number of Securities; and (z) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (x) and (y), the securities of other persons that the Company is obligated to register in a registration statement on pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the appropriate form Maximum Number of Securities. A majority in interest of the Demanding Holders initiating an underwritten offering shall have the right to withdraw its Registrable Securities included in an underwritten offering for the registration and sale as shall be selected by any or no reason whatsoever upon written notification to the Company and as shall be reasonably acceptable the underwriter or underwriters (if any) of its intention to so withdraw at any time up to one business (1) day prior to the Investor registering Registrable Securities in accordance with filing of the intended method applicable preliminary prospectus or methods of distribution (which may be by prospectus supplement used for marketing such underwritten offering. If withdrawn, a demand for an underwritten offeringoffering shall constitute a demand for an underwritten offering by the withdrawing Demanding Holders for purposes of this Section 2(b), unless such Demanding Holders reimburse the Company for all expenses with respect to such underwritten offering (or, if there is more than one Demanding Holder, each Demanding Holder reimburses the Company for a pro rata portion of such expenses based on the total respective number of Registrable Securities specified by the Holders that each Demanding Holder has requested be included in such Demand Notice (a “Demand Registration Statement”underwritten offering). If Following the Investor registering Registrable Securities intends to distribute receipt of any Registrable Securities by means of an underwritten offeringwithdrawal notice, it shall promptly so advise the Company and the Company shall take all reasonable steps promptly forward such withdrawal notice to facilitate such distribution, including the actions required pursuant any other Holders that had elected to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities participate in such underwritten offering. Any Demand Registration Statement mayNotwithstanding anything to the contrary in this Agreement, at the request of Company shall be responsible for the Holders submitting the Demand Noticeregistration expenses incurred in connection with an underwritten offering prior to its withdrawal under this Section 2(b), be other than if a “shelf” Demanding Holder elects to pay such registration expenses pursuant to Rule 415the immediately preceding sentence. Notwithstanding the foregoing, if available.
(B) The the Company shall use reasonable best efforts not be obligated to keep each Demand Registration Statement filed pursuant take any action to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of effect any Demand Registration Statement shall be extended by (x) during the aggregate number period that is thirty (30) days before the Company’s good faith estimate of the date of, and ending on a date that is ninety (90) days of all suspension periods after the consummation of, a Company-initiated offering (pursuant to Section 3.12(d) occurring with respect to such Demand which the Piggyback Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances rights set forth in Section 3.12(d)2(a) are exercised or waived) or (y) if a Piggyback Registration became effective within the preceding ninety (90) days.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cerebras Systems Inc.), Registration Rights Agreement (Cerebras Systems Inc.)
Demand Registration. (Aa) The Investor At any time after the date hereof, Oaktree may make a written demand for registration under the Securities Act of all or part of their Registrable Securities (a “Demand Registration”); any Demand Registration shall have specify the rightnumber of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof (each stockholder making a Demand Registration is referred to herein individually as a “Demanding Stockholder” and, by written notice (collectively, the “Demand NoticeDemanding Stockholders”) given to the Company). As soon as practicable, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) 60 days after the receipt of such request, the Company shall use its reasonable best efforts to file a Registration Statement to effect the registration under the Securities Act of the date on Registrable Securities which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts has been requested to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected register by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”)Demanding Stockholders. If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Each Registration Statement may, prepared at the request of the Holders submitting the Demand Noticea Demanding Stockholder shall be effected on such form as reasonably requested by such Demanding Stockholder, be including by a “shelf” registration that permits sales on a continuous or delayed basis pursuant to Rule 415415 under the Securities Act on Form S-3 (a “Shelf Registration”) if so requested by such Demanding Stockholder and the Company is then eligible to effect a Shelf Registration. If permitted under the Securities Act, if availablesuch Shelf Registration will be one that is automatically effective upon filing.
(b) If the Demanding Stockholders intend to distribute the Registrable Securities covered by their demand by means of an underwriting, the Demanding Stockholders shall so advise the Company as a part of their demand made pursuant to Section 2.1(a). The Underwriter or Underwriters will be selected by Oaktree. Oaktree shall (together with the Company as provided in Section 2.3(e)) enter into an underwriting agreement, in usual and customary form and reasonably acceptable to Oaktree, with the Underwriter or Underwriters of such offering.
(c) Notwithstanding any other provision of this Section 2.1, if the Underwriter advises the Company in writing that marketing factors require a limitation of the number of Registrable Securities to be underwritten, then the Company shall so advise all holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and shall allocate the number of Registrable Securities to be underwritten among all Stockholders who have indicated an intention to participate in the underwriting pro rata in accordance with the number of Registrable Securities that each such Stockholder has requested to be included in such Registration, regardless of the number of Registrable Securities held by each such Stockholder (such proportion is referred to herein as “Pro Rata”).
(d) Notwithstanding the other provisions of this Agreement, if the Company shall furnish to the Demanding Stockholders a certificate signed by the Chief Executive Officer of the Company stating that, in the good faith judgment of the Board, either (i) the filing, initial effectiveness or continued use of a registration statement would be seriously detrimental to the Company and its stockholders for such registration statement and it is therefore essential to delay the filing or initial effectiveness of, or suspend the use of, such registration statement, or (ii) the filing or initial effectiveness of a Demand Registration, or the continued use of any Registration, at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such registration statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company shall, upon promptly delivering such a certificate signed by the Chief Executive Officer of the Company to the Stockholders otherwise participating in such Registration, have the right to delay the filing or initial effectiveness of, or suspend the use of, such registration statement for the shortest possible period of time determined in good faith by the Board to be necessary for such purpose. In no event shall the Company be permitted to (A) delay the filing or initial effectiveness of, or suspend the use of, a registration statement pursuant to this Section 2.1(d) for a period in excess of 90 days, or (B) The exercise its rights under this Section 2.1(d) more than once in any 12 month period. In the event the Company exercises its rights under this Section 2.1(d), Oaktree agrees to suspend, immediately upon its receipt of notice referred to above, its use of the prospectus relating to the Registration in connection with any sale or offer to sell Registrable Securities.
(e) Notwithstanding the other provisions of this Section 2.1, the Company shall use not be obligated to effect, or to take any action to effect, any Registration pursuant to this Section 2.1 during the period starting with the date 60 days prior to the Company’s good faith estimate of the date of filing of, and ending on a date 180 days after the effective date of, a Registration subject to Section 2.2 hereof (including a Registration pursuant to this Section 2.1); provided that the Company is actively employing in good faith its reasonable best efforts to keep each Demand cause such registration statement to become effective.
(f) Demanding Stockholders may elect to withdraw from such offering by giving written notice to the Company and the Underwriter or Underwriters of their request to withdraw prior to the effectiveness of the Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which with the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration. Subject to compliance with the other provisions of this Agreement, the Company (whether on its own determination or as the result of a withdrawal by the Demanding Stockholders) may withdraw a Registration Statement pursuant to a Demand Registration at any time prior to the effectiveness of the Registration Statement.
(C) The . Notwithstanding any such withdrawal, the Company shall be entitled to suspend pay all expenses incurred by the use holders of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth Registrable Securities as provided in Section 3.12(d)2.5.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (AdvancePierre Foods Holdings, Inc.), Registration Rights Agreement (AdvancePierre Foods Holdings, Inc.)
Demand Registration. (Aa) The Investor shall have the right, by Upon written notice (the a “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when on one occasion by Holders owning a Shelf Registration Statement or Shelf Registration Statements covering all majority of the Investor’s then outstanding Registrable Securities on or after the date that is or are not existing and effective120 days after the date of this Agreement, that the Company registershall file a registration statement covering the sale or distribution by the Holders, under and in accordance with the provisions on a delayed or continuous basis pursuant to Rule 415 of the Securities Act, all including without limitation, by way of underwritten offering, block sale or any portion other distribution plan designated by the Holders of a majority of the Registrable Securities designated from time to time, of all of the Registrable Securities requested to be registered in the Demand Notice on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by such Holders in accordance with any reasonable method of distribution elected by the Investor. Upon receipt Holders) (the “Demand Shelf Registration”) within 30 days after the date of a the Demand Notice from and shall use its reasonable best efforts to cause such Shelf Registration to be declared effective by the Investor Commission as promptly as possible after the filing thereof, but in any event within 90 days after the date such Shelf Registration is filed.
(b) Once declared effective, the Company shall, subject to Section 9(j), use its reasonable best efforts to cause the Demand Shelf Registration to be continuously effective until the earlier of (i) such time as there are no longer any Registrable Securities or (ii) such as all Registrable Securities can be resold without restriction as to volume in any and all three month periods under Rule 144 (the “Effectiveness Period”).
(c) If any Shelf Registration ceases to be effective under the Securities Act for any reason at any time during the Effectiveness Period, the Company shall use its reasonable best efforts to promptly cause such Shelf Registration to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf Registration), and in any event shall use its reasonable best efforts to, within 30 days of such cessation of effectiveness, amend such Shelf Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration or (ii) at the option of the Company, file an additional registration statement (a “Subsequent Shelf Registration”) for an offering to be made on a delayed or continuous basis pursuant to this Rule 415 of the Securities Act registering the resale from time to time by Holders thereof of all securities that are Registrable Securities as of the time of such filing. If a Subsequent Shelf Registration is filed, the Company shall use its reasonable best efforts to (x) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after such filing, but in no event later than the date that is 90 days after such Subsequent Shelf Registration is filed and (y) keep such Subsequent Shelf Registration (or another Subsequent Shelf Registration) continuously effective until the end of the Effectiveness Period. Any such Subsequent Shelf Registration shall be a Registration Statement on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by such Holders in accordance with any reasonable method of distribution elected by the Holders.
(d) The Company shall supplement and amend any Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration if required by the Securities Act or as reasonably requested by the Holders covered by such Shelf Registration.
(e) If a person becomes a Holder of Registrable Securities after the Shelf Registration becomes effective under the Securities Act, the Company shall, as promptly as is reasonably practicable following delivery of written notice to the Company of such person becoming a Holder and requesting for its name to be included as a selling securityholder in the prospectus related to the Shelf Registration (a “Subsequent Holder Notice”), and in any event within 15 days after such date:
(i) if required and permitted by applicable law, file with the Commission a supplement to the related prospectus or a post-effective amendment to the Shelf Registration and any necessary supplement or amendment to any document incorporated therein by reference and file any other required document with the Commission so that such Holder is named as a selling securityholder in a Shelf Registration and the related prospectus in such a manner as to permit such Holder to deliver a prospectus to purchasers of the Registrable Securities in accordance with applicable law; provided, however, that if a post-effective amendment is required by the rules and regulations of the Commission in order to permit resales by such Holder, the Company shall not be required to file more than one post-effective amendment or a supplement to the related prospectus for such purpose in any 60-day period;
(ii) if, pursuant to Section 3.12(a)(ii5(e)(i), the Company shall promptly (and in any event within thirty (30) days of have filed a post-effective amendment to the date on which the Company receives such Demand Notice) file with the SECShelf Registration, and the Company shall thereafter use its reasonable best efforts to cause such post-effective amendment to be declared become effective under the Securities Act as promptly as is reasonably practicable, a registration statement on the appropriate form for the registration and sale as shall be selected but in any event by the date that is 60 days after the date such post-effective amendment is required by this Section 5(e) to be filed; and
(iii) the Company and shall notify such Holder as promptly as is reasonably practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to clause (i) above.
(f) If a Demand Notice delivered in accordance with Section 5(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 Investor registering 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.
(g) Notwithstanding any other provision of this Section 5, if the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities advise the Board of Directors of the Company that in its or their opinion the number of Registrable Securities requested to be included in such Shelf Registration and all other securities proposed to be sold in the offering contemplated thereby exceeds the number which can be sold in such underwritten offering in light of market conditions, the Registrable Securities and such other securities to be included in such underwritten Shelf Registration shall be allocated, (i) first, up to the total number of securities the Holders have requested to be included in such Shelf Registration (pro rata based upon the number of securities that each of them shall have requested to be included in such offering), (ii) second, and only if all the Registrable Securities referred to in clause (i) have been included, up to the total number of securities that the holders of piggyback registration rights have requested to be included in such Shelf Registration (pro rata based upon the number of securities that each of them shall have requested to be included in such Shelf Registration) and (iii) third, and only if all the securities referred to in clause (ii) have been included, the number of securities that the Company and other holders have proposed to include in such Shelf Registration that, in the opinion of the managing underwriter or underwriters can be sold without having such adverse effect. To facilitate the allocation of shares in accordance with the intended method above provisions, the Company or methods the managing underwriters may round the number of distribution (which may be by an underwritten offering), shares allocated to any Holder or other holder to the nearest 100 shares. If any Holder disapproves of the total number terms of Registrable Securities specified any such underwriting, such Holder may elect to withdraw therefrom by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends written notice to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate managing underwriter or underwriters. Any securities excluded or withdrawn from such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution underwriting shall be acceptable to the Investor registering Registrable Securities in withdrawn from such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableregistration.
(Bh) The Company shall use reasonable best efforts In the event any Holder requests to keep each Demand participate in a Shelf Registration Statement filed pursuant to this Section 3.12(a)(ii5 in connection with a distribution of Registrable Securities to its partners or members, the Shelf Registration shall in the event such distribution and subsequent resale is permitted by applicable law provide for resale by such partners or members, if requested by such Holder.
(i) continuously effective and usable for The Investors shall have the resale right to have any registration initiated by them under Section 5(a) terminated or withdrawn prior to the effectiveness thereof; provided, however, that the Investors shall pay all Selling Expenses incurred by them in connection therewith and, unless such termination or withdrawal was effected by the Investors primarily as a result of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from Company taking, or failing to take, any action that would be reasonably expected to cause the date on which the SEC declares Investors to effect such Demand Registration Statement effective, as such period may be extended pursuant to termination or withdrawal under this Section 3.12(a)(ii)(B5(i). The time period for which , shall promptly reimburse to the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended Expenses incurred by the aggregate number of days of all suspension periods Company in connection therewith. If the Investors cause a registration to be terminated or withdrawn in accordance with this Section 5(i), they shall again be entitled to exercise their demand rights pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d5(a).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Investor Rights Agreement (Thestreet Com), Investor Rights Agreement (TCV Vi L P)
Demand Registration. (Aa) The Investor If at any time the Company shall have the right, by receive a written notice request (the a “Demand Notice”) given to from the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, Majority Holders that the Company register, effect the registration under and in accordance with the provisions of the Securities Act, Act of all or any portion of the Registrable Securities designated by specified in the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration StatementRegistration”). If , specifying the Investor registering information set forth under Section 2.4(j), then the Company shall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to paragraphs (c) and (d) of this Section 2.1, the registration under the Securities Act of the Registrable Securities intends for which the Majority Holders have requested registration under this Section 2.1, all to distribute any the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered.
(b) At any time prior to the effective date of the registration statement relating to such registration, the Majority Holders may revoke such Demand Registration request by means of providing a notice to the Company revoking such request. The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration.
(c) If a Demand Registration is an underwritten offeringprimary registration on behalf of the Company, it shall promptly so and the managing underwriters advise the Company and in writing that in their opinion the number of shares of Common Stock requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company shall take all reasonable steps will include in such registration (i) first, the number of shares of Common Stock the Company proposes to facilitate sell in such distributionregistration; and (ii) second, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering number of Registrable Securities requested to be included in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for 2, pro rata among the resale respective holders of such Common Stock or Registrable Securities on the basis of the number of shares requested to be included in such registration. If a Demand Registration is an underwritten secondary registration on behalf of holders of Common Stock who have the contractual right to initiate such a registration, and the managing underwriters advise the Company in writing that in their opinion the number of shares of Common Stock requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the Company or the marketability of the offering, the Company will include in such registration (A) first, the number of Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares requested to be included in such Demand Registration Statement effective, as such period may be extended registration pursuant to this Section 3.12(a)(ii)(B). The time period for which 2, pro rata among the respective holders thereof on the basis of the number of shares requested to be included in such registration; and (B) second, the number of shares of Common Stock the Company is required proposes to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to sell in such Demand Registration Statementregistration.
(Cd) The Company shall be entitled Upon notice to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubtMajority Holders, the rights provided Company may postpone effecting a registration pursuant to this Section 3.12(a)(ii) shall 2.1 for a reasonable time specified in the notice but not exceeding 120 days in the aggregate (which period may not be exercisable until extended or renewed), if (i) the Effectiveness DeadlineBoard shall determine in good faith that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which had then been commenced or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Board believes in good faith would not be in the best interests of the Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fifth Street Asset Management Inc.), Registration Rights Agreement (Fifth Street Asset Management Inc.)
Demand Registration. (Ai) The Investor Quantum shall have the option and right, exercisable by delivering a written notice to the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice 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 (the “Demand Registration”).
(ii) Following receipt of a Demand Notice”) given to , the Company, to request, at any time and from time to time during such periods when Company shall file a Shelf Registration Statement or Shelf Registration Statements as promptly as practicable covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and Quantum requests on such Demand Notice to be included in such Demand Registration in accordance with the provisions terms and conditions of this Agreement and shall use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act, Act and remain effective under the Securities Act for not less than twenty four (24) months following the Effective Date or such shorter period when all or any portion of the Registrable Securities designated covered by such Registration Statement have been sold (the Investor. Upon receipt “Effectiveness Period”); provided, however, (i) that the Company shall not be required to effect the registration of a Demand Notice from the Investor Registrable Securities pursuant to this Section 3.12(a)(ii2(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, the Company is not obligated hereunder to effect more than three (3) Demand Registrations in any twelve (12) month period.
(iii) Notwithstanding any other provision of this Section 2(a), the Company shall promptly 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 in any event 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 for a period of up to 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 date on which the Company receives 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 (1) the Unaffiliated Board Members determine such registration would render the Company unable to comply with applicable securities laws or (2) the SECUnaffiliated Board Members determine such registration would require premature disclosure of material information that the Company has a bona fide business purpose for preserving as 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, and a “Shelf Registration Statement”), the Company shall thereafter use 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 as promptly as practicableamendment 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 period referred to in this Section 2(a)(iii), a “Suspension Period”); provided, however, that (i) in no event shall the Company postpone, defer or suspend any Demand Registration pursuant to this Section 2(a)(iii) and/or Section 7(g) for more than an aggregate of one hundred twenty (120) days in any twelve (12) month period, (ii) in the event the Company postpones, defers or suspends any Demand Registration pursuant to Section 2(a)(iii)(C)(1) or (2) or Section 2(a)(iii)(D), then during such Suspension Period, the Company shall not engage in any transaction involving the offer, issuance, sale, or purchase of Common Shares (whether for the benefit of the Company or a third Person), except transactions involving the issuance or purchase of Common Shares as contemplated by Company employee benefit plans or employee or director arrangements. In order to suspend the use of the registration statement 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 statement, 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.
(iv) The Company may include in any such Demand Registration other Common Shares for sale for its own account or for the account of any other Person; provided that if the managing underwriter for the offering determines that the number of 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 Company Securities proposed to be included in such offering or the market for the Common Shares, then the Registrable Securities to be sold by Quantum shall be included in such registration before any Common Shares proposed to be sold for the account of the Company or any other Person.
(v) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on Form F-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form F-3, in which case such Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if 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 F-3 or any equivalent or successor form under the Securities Act (if available to the Company); provided, however, that if at any time a Registration Statement on Form F-3 is effective and Quantum provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vi) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such states as Quantum shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be necessary or appropriate or reasonably requested by Quantum to enable Quantum to consummate a public sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering of such Registrable Securities in accordance with the intended timing and method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availablethereof.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pacific Drilling S.A.), Registration Rights Agreement (Pacific Drilling S.A.)
Demand Registration. (A) The Investor shall have At any time during the rightfive year period following the Closing Date, by USAA may make a written notice request (the “"Demand Notice”") given for registration under the Securities Act (a "Demand Registration") of the Registrable Securities held by it. The Demand Notice will specify the number of shares of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof. Unless USAA shall consent in writing, no other party, including the Company, shall be permitted to requestoffer securities under any such Demand Registration. The Company shall not be required to effect more than three Demand Registrations under this Section 2(b). A registration requested pursuant to this Section 2(b) will not be deemed to have been effected (and it shall not count as one of the three Demand Registrations) unless the Registration Statement relating thereto has become effective under the Securities Act; provided, however that if, after such Registration Statement has become effective, the offering of the Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected (and it shall not count as one of the three Demand Registrations). USAA may, at any time and from time prior to time during such periods when a Shelf the effective date of the Registration Statement or Shelf Registration Statements covering all relating to such registration, revoke its Demand Notice by providing a written notice to the Company. If USAA so elects, the offering of the Investor’s Registrable Securities is pursuant to a Demand Registration shall be in the form of an Underwritten Offering. If the managing underwriter or are not existing and effective, that underwriters of such offering advise the Company register, under and USAA in accordance with writing that in their opinion the provisions number of the Securities Act, all or any portion shares of the Registrable Securities designated by requested to be included in such offering is sufficiently large to materially and adversely affect the Investor. Upon receipt success of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)such offering, the Company shall promptly (and will include in any event within thirty (30) days of such registration the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total aggregate number of Registrable Securities specified which in the opinion of such managing underwriter or underwriters can be sold without any such material adverse effect; provided, however, that Registrable Securities may be excluded before all shares proposed to be sold by other parties, including the Holders in such Demand Notice (a “Demand Registration Statement”)Company, have been excluded. If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringare excluded, it such registration shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request not count as one of the Holders submitting the three Demand Notice, be a “shelf” Registrations. No registration pursuant to Rule 415, if available.
(Ba request or requests referred to in this subsection 2(b) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant deemed to Section 3.12(d) occurring with respect to such Demand Registration Statementbe a Shelf Registration.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Registration Rights Agreement (American Industrial Properties Reit Inc), Registration Rights Agreement (American Industrial Properties Reit Inc)
Demand Registration. (A1) The Investor At any time after the Employment Commencement Date, and subject to the other provisions of this Section 12, the Executive shall have the right, exercisable by making a written notice (the “Demand Notice”) given request to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, demand that the Company register, under and effect the Registration of any Registrable Securities in accordance with the provisions of the Securities Act. The Company shall then comply with Section 12(a)(2) hereof. Any provision herein to the contrary notwithstanding, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor right to demand Registration pursuant to this Section 3.12(a)(ii)12 shall be limited to one Registration demand per calendar year. A right to demand Registration hereunder shall be deemed to have been exercised and all of the Company's demand Registration obligations hereunder for such calendar year shall be deemed to be fully satisfied when the registration statement filed on account of such exercise has been declared effective by the Commission. If any other executive of the Company exercises his or her right, if any, to demand that the Company effect the Registration of any Registrable Securities, then the Executive shall have the right to Register an equivalent number of Registrable Securities 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 promptly (and in any event i) file within thirty ninety (3090) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form under the Act for the registration and sale as shall be selected by 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 as shall be reasonably acceptable conditions customary for offerings of equity securities of entities with market capitalizations that are approximately equal to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which Company's then current market capitalization and may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise contain customary provisions requiring the Company and the Company shall take all reasonable steps Executive to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable indemnify and provide contribution to the Investor registering Registrable Securities in underwriter or underwriters of such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
Offering); and (Biii) The Company shall use its reasonable best efforts to keep each Demand Registration Statement filed pursuant have such registration statement declared effective as promptly as practicable and to this Section 3.12(a)(ii) continuously remain effective and usable for the resale of the Registrable Securities covered thereby for a period of at least one hundred eighty (180) days days. Notwithstanding any other provision hereof, the Executive acknowledges and agrees that there can be no guarantee or warranty from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which or by the Company is required to maintain the effectiveness of that any Demand Registration Statement shall such registration statement will ever be extended declared effective by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to Commission, and that the Company makes no such Demand Registration Statementguarantee or warranty in this Agreement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 2 contracts
Sources: Executive Employment Agreement (Regional Capital Management Corp), Executive Employment Agreement (Regional Capital Management Corp)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, If at any time and from time the Shelf Registration Statement pursuant to time during such periods when Section 4.01 is not available for the resale of the Registrable Securities, including if for any reason the Company is ineligible to maintain or use a Shelf Registration Statement, the Company shall use reasonable best efforts to (as promptly as reasonably practicable and, in any event, within 60 days in the case of a Registration Statement on Form S-1) following the written request of ▇▇▇▇▇▇ for Registration under the Securities Act of all or Shelf Registration Statements covering all part of the Investor’s Jacobs’ Registrable Securities is or are not existing and effective(a “Demand Request”), that the Company register, under and in accordance file a Registration Statement with the provisions of the Securities Act, all or any portion SEC (a “Demand Registration Statement”) with respect to resales of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days ▇▇▇▇▇▇’ intended method of the date on which the Company receives such Demand Notice) file with the SECdistribution thereof, and shall, subject to the Company shall thereafter terms of this Article IV, use its reasonable best efforts to cause such Demand Registration Statement to be declared effective under the Securities Act (promptly and, in any event, no later than 60 days after such filing) and, if required, to qualify under the “blue sky” laws of such jurisdictions as promptly as practicable, a registration statement ▇▇▇▇▇▇ or any underwriter reasonably requests; provided that such Demand Registration Statement shall be filed on the an appropriate form under the Securities Act for the registration and sale as type of offering contemplated by ▇▇▇▇▇▇. Each Demand Request shall be selected by specify the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with to be Registered, their aggregate amount, and the intended method or methods of distribution (which thereof. ▇▇▇▇▇▇ agrees to provide the Company with such information in connection with a Demand Request as may be reasonably requested by an underwritten offering), the Company to ensure that the Demand Registration Statement complies with the requirements of the total number Securities Act, including any financial statements or other information of Registrable Securities specified the SpinCo Business relating to any date or any period ending on or prior to the Merger Closing Date to the extent required to be included or incorporated by the Holders reference in such Demand Notice (a “any Demand Registration Statement”)Statement and not already in the possession of the Company. If Notwithstanding anything in this Agreement to the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringcontrary, it shall promptly so advise the Company and the Company shall take all reasonable steps only be obligated to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each file and cause up to three Demand Registration Statement filed Statements to be declared effective under the Securities Act pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement4.02.
(Cb) The Company shall be entitled deemed to suspend have effected a Demand Registration for purposes of this Section 4.02, Section 4.03(a) and Section 4.04(a) if the use of any effective Demand Registration Statement under becomes effective by the SEC and remains effective until the earlier of (i) 90 days after the effective date or (ii) such time as all Registrable Securities covered by such Registration Statement have been Sold or withdrawn in accordance with this Section 3.12(a)(ii) under 4.02, or if such Registration Statement relates to an Underwritten Offering (as defined below), such longer period as, in the circumstances set forth opinion of outside legal counsel for the underwriter or underwriters, a Prospectus is required by law to be delivered in Section 3.12(d).
connection with Sales of Registrable Securities by an underwriter or dealer (D) For the avoidance of doubtapplicable period, the rights “Demand Period”); provided that (i) if, during the Demand Period, such Registration or the successful completion of the relevant Sale is prevented by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, or a Blackout Period or the need to update or supplement the Registration Statement, the Demand Period shall be extended on a day-for-day basis by the number of days such Registration or successful completion is prevented and (ii) no Demand Registration shall be deemed to have been effective for purposes of Section 4.03(a) and Section 4.04(a) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with any Underwritten Offering pursuant to this Section 3.12(a)(ii) shall such Demand Registration are not be exercisable until the Effectiveness Deadlinesatisfied other than by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement by ▇▇▇▇▇▇.
Appears in 2 contracts
Sources: Registration Rights Agreement (Amentum Holdings, Inc.), Registration Rights Agreement (Amazon Holdco Inc.)
Demand Registration. (AUpon written request of the Holder(s) The Investor of at least a majority of the then outstanding Warrants and Warrant Shares made at any time within the period commencing one year and ending six years after the Effective Date, the Company shall have file within a reasonable period of time and, in any event within the right, by time period provided in Section 12.3(a) after receipt of such written notice (the “Demand Notice”) given to the Company, to request, at its sole expense, on no more than two occasions, a registration statement under the Act registering the Warrant Shares. Within 15 days after receiving any time and from time such notice, the Company shall give notice to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all the other Holders of the Investor’s Registrable Securities is or are not existing Warrants and effective, the Warrant Shares advising that the Company registeris proceeding with such registration statement, under and offering to include therein the Warrant Shares of such other Holders. The Company shall not be obligated to include the Warrant Shares of any such other Holder in such registration unless such other Holder shall accept such offer by notice in writing to the Company within 15 days after receipt of such notice from the Company. The Company shall use its reasonable best efforts to file and cause such registration statement to become effective as promptly as practicable and to remain effective for the period of time provided in Section 12.3, to reflect in the registration statement financial statements that are prepared in accordance with the provisions Section 10(a)(3) of the Securities Act, all and to amend or supplement such registration statement to reflect any portion facts or events arising that, individually or in the aggregate, represent a material change in the information set forth in the registration statement to enable any Holders of Warrants to exercise warrants and/or sell the Registrable Securities designated by the Investorunderlying Warrant Shares during such time period provided in Section 12.3. Upon receipt of a Demand Notice from the Investor If any registration pursuant to this Section 3.12(a)(ii)12.1 is an underwritten offering, the Holders of a majority of the Warrant Shares to be included in such registration will select an underwriter (or managing underwriter if such offering should be syndicated) approved by the Company, such approval not to be unreasonably withheld. Notwithstanding anything in this Warrant Agreement to the contrary, the Company shall promptly be entitled to postpone for a reasonable period of time (and not exceeding 60 days in any event within thirty (3012-month period) days the filing or effectiveness of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause any registration statement otherwise required to be declared effective as promptly as practicableprepared and filed by it pursuant to
Section 12.1 if the Company's Board of Directors determines, a registration statement on the appropriate form for the in its reasonable discretion, that such registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method offering would adversely affect any financing, acquisition, corporate reorganization or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise other material transaction involving the Company and the Company promptly gives the Holders written notice of such determination specifying the grounds therefor and an estimate of the anticipated delay. If the Company shall take all reasonable steps so postpone the filing of a registration statement, a majority-in-interest of the requesting Holders shall have the right to facilitate such distribution, including withdraw the actions required pursuant request for demand registration by giving written notice to Section 3.12(c)the Company within 30 days after receipt of the notice of postponement. The managing underwriters in any such distribution No registration shall be acceptable counted as the demand registration to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of which the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed are entitled pursuant to this Section 3.12(a)(ii) continuously effective 12.1 unless the Holders are able to register and usable for the resale sell at least 90% of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may Warrant Shares requested to be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementincluded therein.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Warrant Agreement (Showpower Inc)
Demand Registration. (Aa) The Investor After the Restricted Period, Cinven on behalf of the Holders shall have the right, by written on not more than three occasions in the aggregate and no more frequently than once during any consecutive twelve-month period, to require the Company to register for offer and sale under the Securities Act (such offer and sale to occur no earlier than February 1, 2016) all or a portion of the Registrable Securities then outstanding, subject to the restrictions set forth herein. As promptly as practicable after the Company receives a notice from Cinven (the a “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, demanding that the Company register, register for offer and sale under and in accordance with the provisions of the Securities Act, all Act Registrable Securities consisting as to each Registration of either (A) Registrable Securities having a fair market value of at least [REDACTED – commercially sensitive information] or any portion (B) at least [REDACTED – commercially sensitive information] of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant Securities, then, subject to this Section 3.12(a)(ii2(b), the Company shall (i) use best efforts to file as promptly (as reasonably practicable with the Commission, and in any event within thirty (30) no later than 20 calendar days following receipt of the date Demand Notice, a Registration Statement relating to the offer and sale of the Applicable Securities on which such form as the Company receives may reasonably deem appropriate and, thereafter, (ii) if applicable, after the filing of an initial version of a Registration Statement, use reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the date of filing of such Registration Statement. No Demand NoticeNotice may be given if it is within six months of the closing of an offering effected under another registration that included any of such Holder’s Registrable Securities. Subject to Section 3(b), the Company shall use reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by the Holders for resales of Applicable Securities for an Effectiveness Period ending on the earlier of (i) 90 days from the Effective Time of such Registration Statement and (ii) such time as all of such securities have been disposed of by the Holders.
(b) The Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registration Statement or included Prospectus or file with or amend a Prospectus, if (i) the SECCompany determines based upon the advice of counsel that it would be advisable to disclose in any offering document a financing, acquisition or other corporate transaction or other material information, and the Company shall thereafter use have determined in good faith that such disclosure would be materially detrimental to the best interests of the Company and its best efforts shareholders, (ii) any offering documents require amendment or supplement to cause comply with the Securities Act and the Exchange Act and the Rules and Regulations, provided that such postponement shall be limited to the period of time reasonably required for the Company to make such amendment or supplement, or (iii) the Company has contractually agreed to a blackout in connection with a primary distribution; provided that no one such postponement shall exceed 90 days in any six month period and all such postponements shall not exceed 180 days in any twelve month period; and provided further that in the event of any such postponement the Effectiveness Period shall be extended by an amount of time equal to the period of any such postponement. The Company shall promptly notify Cinven on behalf of the Holders of any postponement pursuant to this Section 3(b). In making such determination to initiate a postponement, the Company shall not be required to consult with or obtain the consent of any Holder, Cinven or any other Person, and any such determination shall be in the sole discretion of the Company.
(c) In connection with an underwritten offering (whether pursuant to a Demand Registration or a Shelf Offering), if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Holders to be declared effective as promptly as practicableregistered exceeds the number which can be sold in such offering, a registration statement on the appropriate form Company shall include in such offering the number of Applicable Securities that, in the opinion of such managing underwriter or underwriters, can be sold.
(d) The Company may include in any underwritten Shelf Offering or Registration requested pursuant to Section 3(a) hereof other securities for sale for its own account or for the registration account of another Person, subject to the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Holders and sale the securities requested for the account of the Company or another Person to be registered exceeds the number which can be sold in such offering, the Company shall include in such offering the number of Applicable Securities that, in the opinion of such managing underwriter or underwriters, can be sold as follows: [REDACTED – commercially sensitive information].
(e) Cinven on behalf of the Holders shall have the right to withdraw Registrable Securities from a Shelf Offering or to withdraw any request for Registration pursuant to Section 3(a) hereof at any time; provided that such revoked Demand Notice or Shelf Take-Down Notice shall (unless such revocation is due to any Registration Statement becoming unavailable pursuant to a stop order suspending the effectiveness of the Registration Statement or otherwise through no fault of the Holders) count as one Registration pursuant to a Demand Notice, or Shelf Offering, as applicable, for the purpose of the limitations in 2(d) and Section 3(a) unless (i) the withdrawal is made following the occurrence of a Material Adverse Change not known to Cinven at the time of the Demand Notice or Shelf Take-Down Notice, (ii) the withdrawal is made pursuant to Section 3(b), or (iii) the Holders have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses (including fees of outside counsel and accountants and other expenses incurred in connection with such Registration) incurred by the Company in the preparation, filing and processing of the withdrawn Registration or Shelf Offering.
(f) In the event that any Shelf Offering or Registration pursuant to this Section 3 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Holders participating therein, and the other co-lead managing underwriter shall be selected by the Holders participating therein and shall be reasonably acceptable to the Company, and any additional co-managing underwriters shall be selected by the Company; provided that if the Company elects to include any securities in such underwritten offering pursuant to Section 3(d), all of the underwriters of the offering shall be selected solely by the Company and shall be reasonably acceptable to the Holders participating therein.
(g) Where any Registration Statement, Prospectus or supplement or amendment thereto is required to be filed by the Company under Section 2 or 3 hereof, the Company in its sole discretion may elect to file a corresponding Canadian Prospectus in the applicable form with the applicable Canadian Commission in at least one province of Canada in accordance with Canadian Securities Laws solely to the extent required for the purposes of MJDS qualification if such qualification is available under applicable law, in which case the Company will effect Registration in the United States by way of a registration statement on Form F-10 or on such other form as is utilized under MJDS from time to time; provided, however, that if at the time of the applicable Registration, the Company is ineligible to effect a registration statement in the United States on Form F-10 or under another applicable MJDS form, the Company shall effect the Registration in the United States on such form or forms as shall be available to enable the Holders to sell the Registrable Securities in accordance compliance with the intended method United States securities laws. Where any Canadian Prospectus is filed with any Canadian Commission in connection with an offering or methods of distribution (which may be by an underwritten offering)Registrable Securities, of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company shall, from time to time, supplement, amend and renew such Canadian Prospectus if required by Canadian Securities Laws. Any registration of or qualification of securities that occurs concurrently in Canada and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution United States shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be counted as a “shelf” single registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale purposes of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementAgreement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (Concordia Healthcare Corp.)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to requestIf a Purchaser is unable, at any time and from time following the six-month holding period provided in Rule 144, to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s sell its Registrable Securities is or are not existing and effectivepursuant to Rule 144, such Purchaser may demand, in writing, that the Company register, under prepare and in accordance file with the provisions Commission a "Shelf" Registration Statement covering the resale of the Securities Act, all or any portion of the Registrable Securities designated by (or the Investor. Upon receipt of maximum lesser amount as the Commission allows) for an offering to be made on a Demand Notice from the Investor continuous basis pursuant to this Section 3.12(a)(ii)Rule 415. Thereupon, the Company shall as expeditiously as practicable, and in any event on or prior to the Filing Date, use all commercially reasonable efforts to effect the registration on the Registration Statement of all Registrable Securities which the Company has been requested to so register. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith as the Purchasers may consent) and shall contain (except if otherwise directed by the Purchasers) the "Plan of Distribution" substantially in the form attached hereto as Exhibit C.
(b) The Company shall use commercially reasonable efforts to cause the Registration Statement to be declared effective by the Commission as promptly as possible after the filing thereof, but in any event prior to the Required Effectiveness Date, and shall use commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the fifth anniversary of the Effective Date or such earlier date when all Registrable Securities covered by such Registration Statement have been sold publicly or may be sold pursuant to Rule 144 ("Effectiveness Period").
(c) The Company shall notify each Purchaser in writing promptly (and in any event within thirty one Trading Day) after receiving notification from the Commission that the Registration Statement has been declared effective.
(30d) days of As promptly as possible, and in any event no later than the date on which Post-Effective Amendment Filing Deadline, the Company receives such Demand Notice) shall prepare and file with the SEC, and the Commission a Post-Effective Amendment. The Company shall thereafter use its best efforts to cause the Post-Effective Amendment to be declared effective by the Commission as promptly as practicablepossible after the filing thereof, a registration statement but in any event prior to the fifteenth Trading Day after the Post-Effective Amendment Filing Deadline. The Company shall notify each Purchaser in writing promptly (and in any event within one business day) after receiving notification from the Commission that the Post-Effective Amendment has been declared effective.
(e) Upon the occurrence of any Event (as defined below) and on every monthly anniversary thereof until the appropriate form applicable Event is cured, as partial relief for the registration damages suffered therefrom by the Purchasers (which remedy shall not be exclusive of any other remedies available under this Agreement, at law or in equity), the Company shall pay to each Purchaser an amount in cash, as liquidated damages and sale not as a penalty, equal to 1.0% of the greater of (i) the aggregate purchase price paid by such Purchaser hereunder and (ii) the Market Value of the Underlying Shares then outstanding for the first month and 1.0% for each month such event exists or until there are no Registrable Securities issued and outstanding (whichever is earlier), prorated for any partial month. The payments to which a Purchaser shall be selected entitled pursuant to this Section 6.1(e) are referred to herein as "Event Payments". Any Event Payment may, with the prior written consent of the Purchaser receiving such Event Payment, be paid by the Company and in Common Stock in lieu of cash (in such number of shares as shall be reasonably acceptable is equal to the Investor registering nearest whole number obtained by dividing the dollar value of the Event Payment to be made by the Closing Price on the day such Event Payment is made). Any Event Payments payable pursuant to the terms hereof shall apply on a pro-rata basis for any portion of a month prior to the cure of an Event. In the event the Company fails to make Event Payments in a timely manner, such Event Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. For such purposes, each of the following shall constitute an "Event":
(i) the Registration Statement is not filed on or prior to the Filing Date or is not declared effective on or prior to the Required Effectiveness Date unless such occurrence is caused by the breach of Purchasers’ obligation to cooperate with the Company;
(ii) a Post-Effective Amendment is not filed on or prior to the Post-Effective Amendment Filing Deadline or is not declared effective on or prior to the fifteenth Trading Day after the Post-Effective Amendment Filing Deadline;
(iii) after the Effective Date, the Registration Statement (or a subsequent Registration Statement filed in replacement thereof) ceases to be effective or is suspended for five or more Trading Days (whether or not consecutive) during the Effectiveness Period (for any reason other than the requirement of the Company to file a Post-Effective Amendment and for such Post-Effective Amendment to be declared effective), except as otherwise permitted by this Agreement;
(iv) after the Effective Date, any Registrable Securities covered by such Registration Statement are not listed on an Eligible Market;
(v) the Common Stock is not listed or quoted, or is suspended from trading, on an Eligible Market for a period of three Trading Days (which need not be consecutive Trading Days), other than pursuant to Section 6.1(f);
(vi) the Company fails for any reason (other than any Purchaser's actions or omissions to act) to deliver a certificate evidencing any Securities to a Purchaser within three Trading Days after delivery of such certificate is required pursuant to any Transaction Document or the exercise rights of the Purchasers pursuant to the Transaction Documents are otherwise suspended for any reason; or
(vii) the Company fails to have available a sufficient number of authorized but unissued and otherwise unreserved shares of Common Stock available to issue Underlying Shares upon any conversion of the Debentures or exercise of the Warrants or, at any time following the Effective Date, any Underlying Shares are not listed on an Eligible Market.
(f) Following the Effective Date, if (i) there is material non-public information regarding the Company which the Company's Board of Directors (the "Board") determines, in accordance its good faith judgment in reliance on the advice of counsel, not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of significant assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company that would require disclosure under the Exchange Act and with respect to which the Board has determined in its good faith judgment in reliance on the advice of counsel that compliance with this Agreement may reasonably be expected to either materially interfere with the intended method Company’s ability to consummate such transaction in a timely fashion or methods of distribution (which require the Company to disclose material, non-public information prior to such time as it would be required to be disclosed, then the Company may be by an underwritten offering), of the total number notice in writing to each holder of Registrable Securities specified by to which a Prospectus relates, require such holder to suspend, for up to 30 days (the Holders "Suspension Period"), the use of any Prospectus included in such Demand Notice (a “Demand Registration Statement”). If Statement filed with the Investor registering Registrable Securities intends Commission pursuant to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise this Agreement; provided that the Company and the Company shall take all reasonable steps to facilitate such distributionmay not postpone, including the actions required pursuant to delay or suspend its obligation under this Section 3.12(c). The managing underwriters 6.1(f) more than 2 times in any such distribution shall be acceptable to the Investor registering Registrable Securities twelve-month period and in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableno event for more than 45 days in any twelve-month period.
(Bg) The Company shall use reasonable best efforts not, prior to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale Effective Date of the Registrable Registration Statement, prepare and file with the Commission a registration statement relating to an offering for its own account or the account of others under the Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness Act of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementits equity securities.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Securities Purchase Agreement (International Isotopes Inc)
Demand Registration. (Aa) The Investor shall have Subject to Section 2(e) below, the right, by written notice (the “Demand Notice”) given to the Company, to request, Majority Holders may at any time request in writing the registration of Registrable Notes under the Act, and under the securities or blue sky laws of any jurisdiction designated by such holder or holders (each such registration under this Section 2(a) that satisfies the requirements set forth in Section 2(b) is referred to herein as a "Demand Registration"). Notwithstanding the foregoing, in no event shall the Issuers and the Guarantors be required to effect more than two Demand Registrations. Two or more Registration Statements filed in response to one Demand Registration request shall be counted as one Demand Registration. Each request for a Demand Registration by the Holders in respect thereof shall specify the amount of the Registrable Notes proposed to be sold, the intended method of disposition thereof and the jurisdictions in which registration is desired. Upon a request for a Demand Registration, the Issuers shall promptly take such steps as are necessary or appropriate to prepare a Registration Statement providing for the registration of the Registrable Notes to be sold. The Issuers shall be entitled to include in any registration statement and offering made pursuant to a Demand Registration Notes held by Persons other than the Holders. Subject to their ability to issue a Blockage Notice, the Issuers and the Guarantors agree to use their best efforts to keep the Registration Statement continuously effective until 24 months from time the date such Registration Statement is declared effective by SEC or such shorter period that will terminate when all of the Registrable Notes covered by the Registration Statement have been sold pursuant to time during such periods when a Shelf the Registration Statement or Shelf otherwise cease to be Registrable Notes. The Issuers and the Guarantors further agree to supplement or amend the Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated Statement if required by the Investor. Upon receipt of rules, regulations or instructions applicable to the registration form used by them for such Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Demand Notice from the Investor pursuant Holder with respect to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives information relating to such Demand Notice) file with the SECHolder, and the Company shall thereafter to use its their best efforts to cause any such amendment to be declared become effective and such Registration Statement to become usable as promptly soon as thereafter practicable, a registration statement on . The Issuers and the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable Guarantors agree to furnish to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders participating in such Demand Notice Registration copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(b) The Issuers and the Guarantors shall use their best efforts to cause any such Registration Statement to become effective not later than ninety (90) days after it receives a “Demand Registration Statement”request under Section 2(a). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required A registration requested pursuant to Section 3.12(c). The managing underwriters in any such distribution 2(a) hereof shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request not count as one of the [two] demands to which the Holders submitting are entitled thereunder unless such registration statement is declared effective and remains effective for the Demand Notice, be a “shelf” period required under Section 2(a) hereof.
(c) The Issuers and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Rule 415Section 2(a). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if available.
(B) The Company shall use reasonable best efforts any, relating to keep each Demand Registration Statement filed the sale or disposition of such Holder's Registrable Notes pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(Cd) The Company shall Without limiting the remedies available to the Holders, each of the Issuers and the Guarantors acknowledges that any failure by it to comply with its obligations under Section 2(a) hereof may result in material irreparable injury to the Holders for which there is no adequate remedy at law, that it will not be entitled possible to suspend measure damages for such injuries precisely and that, in the use event of any effective such failure, any Holder may obtain such relief as may be required to specifically enforce such Issuer's or Guarantor's obligations under Section 2(a) hereof.
(e) Each registration in respect of a Demand Registration Statement under this Section 3.12(a)(ii) under must include Registrable Notes having an aggregate principal amount of at least $1,000,000 (provided that the circumstances limitation set forth in Section 3.12(dthis clause [(i).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) ] shall not be exercisable until in effect at any time the Effectiveness DeadlineHolders' Registrable Notes are not able to be sold under Rule 144 under the Act solely because of the Issuers' or the Guarantors' failure to comply with the information requirements thereunder).
Appears in 1 contract
Sources: Registration Rights Agreement (Triarc Companies Inc)
Demand Registration. (A) The Investor At any time commencing after the Closing Date, the Purchasers shall have the right, exercisable by written notice to the Company (the “"Demand Notice”) given Registration Request"), to have the Company prepare and file with the Commission, on one occasion, at the sole expense of the Company, to requestin respect of all the Shares of Common Stock purchased under this Agreement (the "Registrable Securities"), at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing so as to permit a public offering and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion sale of the Registrable Securities designated by the InvestorSecurities. Upon receipt of a Demand Notice from the Investor pursuant On or prior to this Section 3.12(a)(ii)each Filing Date, the Company shall promptly (prepare and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SECCommission a "Shelf" Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-1 or another appropriate form permitting registration of Registrable Securities for resale by the Holders in the manner or manners designated by them (including, without limitation, public or private sales and the one or more Underwritten Offerings). The Company shall thereafter (i) not permit any securities other than the Registrable Securities to be included in the Registration Statement and (ii) use its best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as practicablepracticable after the filing thereof, but in any event prior 120 days after the filing of such Registration Statement, and to keep such Registration Statement continuously effective under the Securities Act until the date which is five years after the date of this Agreement or such earlier date when all Registrable Securities covered by such Registration Statement have been sold or may be sold pursuant to Rule 144 as determined by the counsel to the Company pursuant to a registration statement on written opinion letter, addressed to the appropriate Holders, to such effect (the "Effectiveness Period"); provided, however, that the Company shall not be deemed --------------------- -------- ------- to have used its best efforts to keep the Registration Statement effective during the Effectiveness Period if it voluntarily takes any action that would result in the Holders not being able to sell the Registrable Securities covered by such Registration Statement during the Effectiveness Period, unless such action is required under applicable law or the Company has filed a post- effective amendment to the Registration Statement and the Commission has not declared it effective.
a. If the Holders of a majority of the Registrable Securities so elect, an offering of Registrable Securities pursuant to a Registration Statement may be effected in the form for of an Underwritten Offering. In such event, and if the registration managing underwriters advise the Company and sale as such Holders in writing that in their opinion the amount of Registrable Securities proposed to be sold in such offering exceeds the amount of Registrable Securities which can be sold in such offering, there shall be included in such Underwritten Offering the amount of such Registrable Securities which in the opinion of such managing underwriters can be sold, and such amount shall be allocated pro rata among the --- ---- Holders proposing to sell Registrable Securities in such Underwritten Offering.
b. If any of the Registrable Securities are to be sold in an Underwritten Offering, the investment banker or investment bankers and manager or managers that will administer the offering will be selected by the Company and as shall be reasonably acceptable to Holders of a majority of the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders included in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company offering and the Company shall take all reasonable steps to facilitate such distribution, including be advised in advance of the actions required pursuant to Section 3.12(c)identity of any underwriter and the general terms of the proposed offering. The managing underwriters No Holder may participate in any Underwritten Offering hereunder unless such distribution shall be acceptable Person (i) agrees to the Investor registering sell its Registrable Securities on the basis provided in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended underwriting agreements approved by the aggregate number Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) attorney, indemnities, underwriting agreements and other documents required under the circumstances set forth in Section 3.12(d)terms of such arrangements.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Racom Systems Inc)
Demand Registration. (Ai) The Investor Millenium shall have the option and right, exercisable by delivering a written notice to the Company (a “Demand Notice”), to require the Company to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice 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 (the “Demand Registration”).
(ii) Following receipt of a Demand Notice”) given to , the Company, to request, at any time and from time to time during such periods when Company shall file a Shelf Registration Statement or Shelf Registration Statements as promptly as practicable covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and Millenium requests on such Demand Notice to be included in such Demand Registration in accordance with the provisions terms and conditions of this Agreement and shall use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act, Act and remain effective under the Securities Act for not less than twenty four (24) months following the Effective Date or such shorter period when all or any portion of the Registrable Securities designated covered by such Registration Statement have been sold (the Investor. Upon receipt “Effectiveness Period”); provided, however, (i) that the Company shall not be required to effect the registration of a Demand Notice from the Investor Registrable Securities pursuant to this Section 3.12(a)(ii2(a) unless the Registrable Securities are offered at an aggregate proposed offering price of not less than $25 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)(iii). Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect more than three (3) Demand Registrations in any twelve (12) month period. A registration will not count as a requested registration under this Section 2(a) until the Registration Statement relating to such registration has been declared effective by the Commission and unless Millenium was able to register all the Registrable Securities requested by it to be included in such registration.
(iii) Notwithstanding any other provision of this Section 2(a), the Company shall promptly 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 Millenium)(the “Unaffiliated Board Members”), of the date of filing of, and in any event 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 for a period of up to 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 date on which the Company receives time of such Demand Notice, in a firm commitment underwritten public offering of Ordinary Shares, or (2) file with the SEC, Company is currently engaged in a self-tender or exchange offer and the Company shall thereafter use its best efforts to filing of a Registration Statement would cause to be declared effective as promptly as practicable, a violation of the Exchange Act;
(C) effect a registration statement on or file a Registration Statement for a period of up to ninety (90) days, if (1) the appropriate form for the Unaffiliated Board Members determine such registration and sale as shall be selected by would render the Company and as shall be reasonably acceptable unable to comply with applicable securities laws or (2) the Investor registering Registrable Securities in accordance with the intended method or methods Unaffiliated Board Members determine such registration would require premature disclosure of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise material information that the Company and has a bona fide business purpose for preserving as confidential; or
(D) if the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be has filed a “shelf” registration statement pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each a Demand Registration Statement filed pursuant to Notice under this Section 3.12(a)(ii2(a) continuously effective and usable for the resale of the has included Registrable Securities covered thereby for a period of one hundred eighty therein (180) days from the date on which the SEC declares each such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The , 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 Ordinary Shares 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 Ordinary 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, determine 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 period referred to in this Section 2(a)(iii), a “Suspension Period”); provided, however, that (i) in no event shall the Company postpone, defer or suspend any Demand Registration pursuant to this Section 2(a)(iii) and/or Section 7(g) for more than an aggregate of ninety (90) days in any twelve (12) month period, and
(ii) in the event the Company postpones, defers or suspends any Demand Registration pursuant to Section 2(a)(iii)(C)(1) or (2) or Section 2(a)(iii)(D), then during such Suspension Period, the Company shall not engage in any transaction involving the offer, issuance, sale, or purchase of Ordinary Shares (whether for the benefit of the Company or a third Person), except transactions involving the issuance or purchase of Ordinary Shares as contemplated by Company employee benefit plans or employee or director arrangements. In order to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided registration statement pursuant to this Section 3.12(a)(ii) 2(a)(iii)(D), the Company shall not be exercisable until promptly upon determining to seek such suspension, deliver to the Effectiveness Deadlineholders of Registrable Securities included in such registration statement, 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.
Appears in 1 contract
Sources: Registration Rights Agreement (Kenon Holdings Ltd.)
Demand Registration. (A) The At any time after the second anniversary of the Second Closing Date, the Investor shall have may request from time to time one or more registrations under the rightSecurities Act covering the registration of all or such lesser amount of its Registrable Securities if the anticipated aggregate offering price, by written notice net of underwriting discounts and commissions, would exceed $5,000,000 (the “Demand NoticeRegistration”) given to ). The Demand Registration shall be on such form as the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, Company shall select; provided that the Company registershall not be obligated to file a registration statement on Form S-1. Each Demand Registration shall specify the number of Registrable Securities to be registered. The Company shall use commercially reasonable efforts to cause a registration statement to be filed by the Registration Deadline, and shall use its commercially reasonable efforts to cause such registration statement to be declared effective by the SEC not later than the Effectiveness Deadline (as defined in Section 5.19(j)(i)). The Company shall use commercially reasonable efforts to keep such Demand Registration current and effective until the earlier of (i) two years from the effective date of the registration statement; or (ii) the Registrable Securities registered thereby cease to be Registrable Securities. It is anticipated that a registration pursuant to this Section 5.19(a) shall be effected by means of a shelf registration under and the Securities Act on Form S-3 (a “Shelf Registration Statement”) in accordance with the provisions of methods and distribution set forth in the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (Shelf Registration Statement and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”)Rule 415. If the Investor registering or any other Holder of Registrable Securities to whom the registration rights conferred by this Agreement have been transferred in compliance with this Agreement intends to distribute any Registrable Securities by means of an underwritten offering, offering it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c5.19(c); provided, that the Company shall not be required to facilitate an underwritten offering of Registrable Securities unless the expected gross proceeds from such offering exceed $5,000,000 and the right of the Investor or any other Holder of Registrable Securities to whom the registration rights conferred by this Agreement have been transferred in compliance with this Agreement to include their Registrable Securities in such registration shall be conditioned upon their participation in such underwriting and the inclusion of their Registrable Securities in the underwriting to the extent provided herein. The managing lead underwriters in any such distribution shall be selected by the holders of a majority of the Registrable Securities to be distributed and be reasonably acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableCompany.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Notwithstanding the registration obligations set forth in Section 3.12(a)(ii) continuously effective and usable for 5.19(a)(1)(A), in the resale event that all of the Registrable Securities covered thereby cannot, as a result of the application of Rule 415, be registered for resale as a period secondary offering on a single registration statement, the Company agrees to promptly (i) inform each of one hundred eighty the Holders (180as defined in Section 5.19(k)(2)) days from thereof and use its commercially reasonable efforts to file amendments to the date on which initial Shelf Registration Statement as required by the SEC declares such Demand and/or (ii) withdraw the initial Shelf Registration Statement effectiveand file a new Shelf Registration Statement, as in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on such period may be extended pursuant form available to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain register for resale the effectiveness of any Demand Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or new Shelf Registration Statement Statement, the Company shall be extended by obligated to use its commercially reasonable efforts to advocate with the aggregate number of days SEC for the registration of all suspension periods pursuant to of the Registrable Securities in accordance with SEC Guidance (as defined in Section 3.12(d) occurring with respect to such Demand Registration Statement5.19(j)(10)), including Compliance and Disclosure Interpretation 612.09.
(C) The Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of Registrable Securities or other securities permitted to be registered on a particular Shelf Registration Statement as a secondary offering (and notwithstanding that the Company used commercially reasonable efforts to advocate with the SEC for the registration of all or a greater number of Registrable Securities), the number of Registrable Securities or securities to be registered on such Shelf Registration Statement will be reduced as follows: first, the Company shall reduce or eliminate the securities to be entitled included by any person other than a Holder; second, the Company shall reduce or eliminate any securities to suspend be included by any Affiliate (which shall not include Investor or its Affiliates) of the use Company; and third, the Company shall reduce the number of any effective Registrable Securities to be included by all Holders on a pro rata basis based on the total number of unregistered Registrable Securities held by such Holders, subject to a determination by the SEC that certain Holders must be reduced before other Holders based on the number of Registrable Securities held by such Holders. In the event the Company amends the initial Shelf Registration Statement or files a new Shelf Registration Statement, as the case may be, under this Section 3.12(a)(iiclauses (i) under or (ii) above, the circumstances set forth Company will use its commercially reasonable efforts to file with the SEC, as promptly as allowed by the SEC or SEC Guidance provided to the Company or to registrants of securities in Section 3.12(d)general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the initial Shelf Registration Statement, as amended, or the new Shelf Registration Statement. No Holder shall be named as an “underwriter” in any Registration Statement without such Holder’s prior written consent.
(D) For the avoidance The Company shall not be required to effect a registration (including a resale of doubt, the rights provided Registrable Securities from an effective Shelf Registration Statement) or an underwritten offering pursuant to this Section 3.12(a)(ii5.19(a): (i) with respect to securities that are not Registrable Securities; (ii) during any Scheduled Black-out Period (as defined in Section 5.19(j)(9)); or (iii) if the Company has notified the Investor and all other Holders that in the good faith judgment of the Board of Directors, it would be seriously detrimental to the Company or its security holders for such registration or underwritten offering to be effected at such time, in which event the Company shall have the right to defer such registration or underwritten offering for a period of not more than 90 days after receipt of the request of the Investor or any other Holder; provided that such right to delay a registration or underwritten offering shall be exercisable until exercised by the Effectiveness DeadlineCompany (A) only if the Company has generally exercised (or is concurrently exercising) similar black-out rights against all holders of similar securities that have registration rights, (B) not more than once in any 12-month period and (C) so long as the total number of days of any delays hereunder and the total number of days of any suspension under Section 5.19(d) do not exceed, in the aggregate, 120 days in any 12-month period. The Company shall provide the Investor written notice of any Scheduled Black-out Period, if applicable to such Investor, no later than seven business days prior to the commencement of such Scheduled Black-out Period.
Appears in 1 contract
Sources: Securities Purchase Agreement (Summit Financial Group Inc)
Demand Registration. (Ai) The Investor If (i) a Shelf Registration Statement has not been filed in accordance with Section 2(a) registering the offer and sale of such Registrable Securities as required in accordance with Section 2(a) or (ii) following the effectiveness of the Shelf Registration Statement contemplated by Section 2(a), the Company thereafter ceases to have an effective Shelf Registration Statement registering the offer and sale of all Registrable Securities during the Shelf Period (other than during any Suspension Period), subject to the terms and conditions of this Agreement, at any time after the expiration of the Lock-Up Period, any Holder shall have the option and right, exercisable by delivering a written notice to the Company (the a “Demand Notice”) given ), to require the Company to, pursuant to the Companyterms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to request, at any time and from time to time during such periods when Rule 415 on a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended timing and method of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2(b)(ii) (A) represent at least 3% of the total outstanding Common Shares or (B) have an aggregate value of at least $20 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) Within five Business Days (or if the Registration Statement will be a Shelf Registration Statements Statement, within two Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for offer and resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the limitations of this Section 2(b), file a Registration Statement in accordance with the terms and conditions of, and the intended timing and method of disposition described in, the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(b)(ii)). The Company shall use commercially reasonable efforts to cause such Registration Statement to become, as soon as reasonably practicable after the filing thereof (but no later than the earlier of (a) the 90th calendar day following the filing date thereof if the Commission notifies the Company that it will “review” the Registration Statement and (b) the 10th Business Day after the date the Company is notified by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review), and remain continuously, effective under the Securities Act until the earlier of (A) 180 days (or the expiration of the Shelf Period if a Shelf Registration Statement is requested) after the Effective Date of such Registration Statement or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold or otherwise disposed of or such Shares are no longer Registrable Securities (the “Effectiveness Period”); provided 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, the Company is not obligated hereunder to effect (A) a Demand Registration within 60 days after the closing of any Requested Underwritten Offering, or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Investor’s Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is or are not existing sufficient to permit offers and effective, that sales of the Company register, under number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the provisions intended timing and method of disposition thereof specified in the Demand Notice. The Company is obligated hereunder to effect such Demand Registrations for which the Initial Holder (or any transferee thereof in accordance with Section 8(e)) is the Initiating Holder as the Initial Holder reasonably requests. 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 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(b)(iii) if, as a result of Section 2(b)(vi), there is included in the Demand Registration less than the lesser of (x) Registrable Securities Act, of the Initiating Holder having a VWAP measured on the Effective Date of the applicable 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) A Holder may withdraw all or any portion of the its Registrable Securities designated included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement by delivering written notice to the InvestorCompany setting forth the number of Registrable Securities that the Holder intends to withdraw from such Demand Registration. Upon receipt of a Demand Notice written notice from the Investor pursuant Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or written notice from a Holder to this Section 3.12(a)(ii)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 promptly 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(b)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses (including the reasonable and documented fees and expenses of the Company’s counsel) incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any event within thirty such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(b)(vi) and Section 2(e)(iii).
(30vi) days In the case of a Demand Registration not being underwritten, if the Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to be included in such registration exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the date on which securities offered or the Company receives such Demand Notice) file with market for the SECsecurities offered, and the Company shall thereafter use its best efforts to cause 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 declared effective allocated as promptly as practicablefollows: (A) first, a registration statement 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 then held by each such Holder, (B) second, if there remains availability for additional securities to be included in such Demand Registration, to the Company, and (C) third, if there remains availability for additional securities to be included in such Demand Registration following the allocation provided in clauses (A) and (B) above, to any other holders of Company Securities entitled to participate in such Demand Registration, if applicable, based on the relative number of Company Securities such holder is entitled to include in such Demand Registration.
(vii) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form for of the registration and sale Commission (A) as shall be selected by the Company and (B) as shall be reasonably acceptable to permit the Investor registering disposition of the Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering)disposition specified in the Demand Notice; provided, that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the total number Demand Registration for any offering and selling of Registrable Securities specified shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company shall amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(b), 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 Registrable Securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of such 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 in to enable the Holders to consummate a public sale of such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand accordance with the intended timing and method of distribution thereof.
(ix) In the event a Holder transfers Registrable Securities included on a Registration Statement mayand such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, the Holders submitting Company shall amend or supplement such Registration Statement as may be necessary in order to enable the Demand Notice, be a “shelf” registration transferee of such Registrable Securities to offer and sell such Registrable Securities pursuant to Rule 415such Registration Statement; provided, if available.
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 the Company shall use reasonable best efforts to keep has received written consent therefor from each Demand other Holder for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for Statement, other than the resale Holder, Affiliates of the Registrable Securities covered thereby for a period Holder or transferees of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementHolder.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given Subject to the Company, to requestprovisions hereof, at any time and from time to time during such periods when on or after the date hereof, the Holder or Holders of a Shelf Registration Statement or Shelf Registration Statements covering all majority (by number of shares of Warrant Shares) of the Investor’s Registrable Securities is or are not existing and effective, that (the Company register, "Requesting Holders") may make a written request to the Corporation for registration with the SEC under and in accordance with the provisions of the Securities Act, Act of all or part of such Requesting Holders' Registrable Securities (a "Demand Registration"); provided, that (x) the Corporation need not effect the Demand Registration unless the sale of Registrable Securities held by the Requesting Holders pursuant to the Demand Registration will result in receipt by such Requesting Holders of at least $1,000,000 in aggregate net proceeds, and (y) the Corporation may defer the Demand Registration for a single period not to exceed 180 days, if the Board of Directors of the Corporation determines in the exercise of its reasonable judgment that due to a pending or contemplated acquisition, disposition or public offering it would be inadvisable to effect the Demand Registration at such time. Within 10 days after receipt of the request for a Demand Registration, the Corporation will serve written notice (the "Notice") of such registration request to all Holders of Registrable Securities. Subject to Section 2(d) below, the Corporation will include in any portion Demand Registration all Registrable Securities of the Holders for which the Corporation has received written requests for inclusion therein from such Holder within 15 business days after the receipt by the applicable Holder of the Notice. All requests for the sale of Registrable Securities in any Demand Registration made pursuant to this Section 2(a) will specify the aggregate number of the Registrable Securities designated to be registered.
(b) Unless the Demand Registration is effected by an offering on a continuous or delayed basis under Rule 415 or any successor rule under the Securities Act, a Demand Registration shall be effected pursuant to a firm commitment underwritten registration and offering, the managing underwriter of which shall be a nationally-recognized investment banking firm named by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (Majority Selling Holders and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities Corporation. The Corporation agrees that the firm of Furm▇▇ ▇▇▇▇ ▇▇▇. is acceptable to the Corporation.
(c) The Holders shall be entitled to no more than one Demand Registration, and the expenses (including the reasonable fees and expenses of one counsel for the Holders in accordance with the intended method or methods of distribution (which may Section 12) thereof shall be by an underwritten offering), of the total number of Registrable Securities specified borne by the Corporation and Holders as set forth in Section 12. A Demand Registration will not be counted as a Demand Registration hereunder until such Demand Notice Registration has been declared effective (and Section (a)(3) of Rule 430A under the Securities Act shall have been complied with, if applicable) and maintained continuously effective for a “Demand Registration Statement”). If period (i) in the Investor registering Registrable Securities intends to distribute any Registrable Securities by means case of an underwritten offering, it shall promptly so advise the Company and the Company shall take of at least six months or such shorter period until all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities included therein have been sold in accordance with such underwritten offering. Any Demand Registration Statement mayor (ii) in the case of an offering on a continuous or delayed basis, such period until all Registrable Securities included therein have been sold in accordance with such Demand Registration; provided, however, if a Demand Registration is withdrawn prior to effectiveness thereof at the request of the Holders submitting the Demand Notice, be holders of a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale majority of the Registrable Securities covered thereby included therein due to reasons other than material adverse changes in the Corporation's condition, financial or otherwise, since the written request for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effectivewas delivered to the Corporation, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall will be extended counted hereunder unless such Holders agree to pay the expenses incurred by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementCorporation in connection therewith.
(Cd) The Company shall be entitled If the managing underwriter of a Demand Registration advises the Corporation in writing (with a copy to suspend the use Requesting Holders and each other Holder requesting inclusion of any effective Registration Statement under this Section 3.12(a)(iiRegistrable Securities therein) under the circumstances set forth that, in Section 3.12(d).
(D) For the avoidance of doubtits opinion, the rights provided pursuant number of Registrable Securities requested to this Section 3.12(a)(iibe included in the Demand Registration exceeds the number which can be sold in such offering, then the Corporation will include in such registration only the number of Registrable Securities recommended by the managing underwriter, selected in the following order of priority: (i) shall not first, the Registrable Securities that the Requesting Holders have requested to be exercisable until included in such registration (pro rata according to the Effectiveness DeadlineRegistrable Securities proposed to be included in the registration by such Requesting Holders); (ii) second, Registrable Securities that other Holders have requested to be included in such registration (pro rata according to the Registrable Securities proposed to be included in the registration by such other Holders); and (iii) third, securities held by all other parties.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Furman Selz Sbic L P)
Demand Registration. (A) The Investor shall have the right, by written notice (the “Demand Notice”) given Subject to the Company, to requestconditions contained herein, at any time on or after the first to occur of the fifth anniversary of this Agreement (on condition that the Employee's employment was not terminated pursuant to Section 6), the date of any Change of Control of the Company or the Date of Termination pursuant to Section 11 and before the third anniversary of the Employee's death, and on a maximum of three occasions only except as otherwise noted in paragraph (b) the Employee or his designated beneficiary, guardian, executor or personal representative may deliver to the Company a written request (a "Sale Request") that the Company file a registration statement under the Securities Act (the "Registration Statement") which Registration Statement shall cover (i) any shares of the Company Common Stock owned by the Employee or his spouse, beneficiaries or estate (the "Issued Recoton Stock"), (ii) any shares of the Company Common Stock owned by the Employee or his spouse, beneficiaries or estate (for purposes of this Section 12, "Employee" shall include such spouse, beneficiaries or estate, as applicable) acquired or acquirable pursuant to any option from the Company ("Option Stock") and (iii) any securities issued as a dividend on the Issued Recoton Stock or Option Stock, or in exchange therefore (collectively, the "Eligible Shares") as to which registration shall have been requested in accordance with this Section 12 (the "Registration Shares"). The Company shall use its reasonable efforts in good faith to cause such Registration Statement to become effective and to keep such Registration Statement continuously effective for a period of 90 days after the initial declaration of effectiveness. The minimum amount of Eligible Shares with respect to which registration pursuant to this Section 12 may be requested shall be such number of Registration Shares as shall have a Market Price (as defined in paragraph (c) below) of at least $1,000,000 in the aggregate. The timing of the filing and processing of the Registration Statement shall be determined by the Company in its sole discretion; provided, however, that if the Company fails to file a Registration Statement for more than 90 days beyond the date of receipt of a Sale Request, or if it does so and if such Registration Statement is not declared effective by the six-month anniversary of the Sale Request or, if declared effective, the effectiveness is later suspended and such suspension is not terminated within 30 days thereafter, the Company shall then purchase the Registration Shares at the Market Price. The Company shall advise the Employee's from time to time during such periods when a Shelf as to the actions that it determines to take with respect to any Sale Request. With respect to each Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)files hereunder, the Company shall promptly have the right (subject to the Employee's prior approval, which shall not be unreasonably withheld or delayed) to select the managing underwriters (provided that the fees charged to the Employee are customary) and the Employee shall have the right (subject to the Company's prior approval which shall not be unreasonably withheld or delayed), to determine the timing and the method of sale of such shares. For the purposes of this Agreement, the term "customary" shall mean the lesser of: (a) the fees charged to the Company for comparable public offerings of its common stock during the past five years or (b) the fees customarily charged within the underwriting industry in any event within thirty (30) days New York City for offerings of the date on which type requested by the Company receives such Demand Notice) file with Employee. If there are any disputes between the SEC, Employee and the Company concerning the computation of customary fees, the same shall thereafter use its best efforts to cause to be declared effective as promptly as practicabledetermined by a nationally known underwriter not affiliated or having a business relationship with either the Employee or the Company, a registration statement on the appropriate form for the registration and sale as which shall be selected by the Company and as them, or if they shall fail to select such an underwriter which is willing to act in such capacity, such dispute shall be reasonably acceptable submitted to binding arbitration under the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), rules of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableAmerican Arbitration Association then obtaining.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: By Laws (Recoton Corp)
Demand Registration. (Aa) The After an IPO, the Company shall use reasonable 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. Once the Company has qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, each Investor shall have the right, by written notice (the “Demand Notice”) given right to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all request an unlimited number of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, registrations under and in accordance with the provisions of the Securities Act, Act of all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(iia Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. The Company shall promptly prepare and file with (and 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 Investors have requested to be included in any event the Short-Form Registration within thirty (30) 30 days of after the date on which the initial request is given and shall use reasonable efforts to cause the Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(b) Once the Company receives such Demand Notice) has qualified for the use of 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”), each Investor shall have the right to request registration under the Securities Act of all or any portion of that Investor’s Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. The Company shall prepare and file with (or confidentially submit to) the SECCommission a Shelf Registration Statement covering all of the Registrable Securities that an Investor has requested to be included in the Shelf Registration within 30 days after the date on which the initial request is given and shall use reasonable efforts to cause the Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) The Company may postpone for up to 90 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that the Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering 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; provided, that if Investors are entitled to withdraw the request and, if the request for a Demand Registration is withdrawn, the Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a pay all registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities expenses in accordance connection with the intended method or methods of distribution (which registration. The Company may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (delay a “Demand Registration Statement”). or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(d) If the Investor registering who requested the Demand Registration or Shelf Takedown elects to distribute the Registrable Securities intends to distribute any Registrable Securities covered by means of its request in an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required as a part of its request made pursuant to Section 3.12(c2(a), Section 2(b) or Section 2(c). The electing Investor shall select the investment banking firm or firms to act as the managing underwriter or underwriters in any such distribution connection with the offering; provided, that the selection shall be acceptable subject to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request consent of the Holders submitting the Demand NoticeCompany, which consent shall not be a “shelf” registration pursuant to Rule 415, if availableunreasonably withheld or delayed.
(Be) The Company shall use reasonable best efforts to keep each not include in any Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for or Shelf Takedown any securities that are not Registrable Securities without the resale prior written consent of the holders of a majority of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from initially requesting the date on which the SEC declares such Demand Registration Statement effectiveor Shelf Takedown, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) consent shall not be exercisable until unreasonably withheld or delayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the Effectiveness Deadlinemanaging underwriter of the requested Demand Registration or Shelf Takedown advises the Company and Investors in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in the underwritten offering, exceeds the number of shares of Common Stock that can be sold in the underwritten offering and/or the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in the underwritten offering, the Company shall include in the Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that Investors propose to sell (pro rata in accordance with the number of shares of Common Stock proposed to be sold by each), and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among those Persons in any manner they agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in the offering, then the Registrable Securities that are included in the offering shall be allocated pro rata among the respective holders (other than Investors) on the basis of the number of Registrable Securities owned by each such holder.
Appears in 1 contract
Sources: Registration Rights Agreement (FlexEnergy Green Solutions, Inc.)
Demand Registration. (Ai) The Investor At any time after the 180th day after the Closing Date, any Holder that holds Registrable Securities (the “Initiating Holder”) shall have the option and right, exercisable by delivering a written notice to the Partnership (the a “Demand Notice”) given ), to require the Partnership to, pursuant to the Companyterms and subject to the limitations set forth in this Agreement, to request, at any time prepare and from time to time during such periods when file with the Commission a Shelf Registration Statement or Shelf Registration Statements covering all registering the offering and sale of the Investor’s number and type of Registrable Securities is or are not existing and effective, that on the Company register, under and terms set forth in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the InvestorDemand Notice (a “Demand Registration”). Upon receipt of a Demand Notice from any Initiating Holder (the Investor “Initiating Holder”), the Partnership shall file with the Commission as promptly as reasonably practicable a Registration Statement providing for the offer and sale of the Registrable Securities identified in such Demand Notice, which Registration Statement may, at the option of the Initiating Holder, be a Registration Statement that provides for the resale of the Registrable Securities from time to time pursuant to Rule 415 under the Securities Act in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. The Partnership shall have the right to elect that any Demand Registration be made pursuant to a Shelf Registration Statement. The Partnership shall use commercially reasonable efforts to cause such Registration Statement to become effective as soon as reasonably practicable after the initial filing of the Registration Statement and to remain effective and available for the resale of the Registrable Securities by the Selling Holders named therein for not less than six months following such Registration Statement’s effective date or such shorter period when all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that the Partnership shall not be required to effect the Registration of Registrable Securities pursuant to this Section 3.12(a)(ii2(a) unless at least an aggregate of 1,500,000 Registrable Securities (as adjusted to reflect splits, combinations, dividends and recapitalizations) are offered or the Registrable Securities are offered at an aggregate proposed offering price of not less than $30 million. In the event the Partnership receives a Demand Notice from one or more Holders request that satisfies the conditions set forth in the immediately preceding sentence, the Partnership shall retain such underwriters and bookrunning managers as are mutually agreed by the Partnership and the Selling Holders in order to permit such Selling Holders to offer and sell the Registrable Securities set forth in the Demand Notice through an Underwritten Offering. The Partnership and such Selling Holders shall enter into an underwriting agreement in customary form and take all reasonable actions as are requested by the managing underwriters to facilitate the Underwritten Offering and sale of Registrable Securities therein. No Holder may participate in the Underwritten Offering unless it agrees to sell its Registrable Securities covered by the Registration Statement on the terms and conditions set forth in the underwriting agreement and completes and delivers all necessary documents and information reasonably required under the terms of such underwriting agreement or as the General Partner may determine is reasonably necessary to effect such Underwritten Offering. Any Holder may withdraw from such Underwritten Offering by notice to the Partnership and the managing underwriter, provided such notice is delivered prior to the launch of such Underwritten Offering.
(ii) Within five (5) Trading Days of the Partnership’s receipt of a Demand Notice, the Partnership shall give written notice of such Demand Notice to all Holders eligible to participate in the Demand Registration pursuant to this Section 2(a) (the “Demand Eligible Holders”). and shall, subject to the limitations of this Section 2(a), as promptly as is reasonably practicable, file a Registration Statement covering all of the Registrable Securities that the Demand Eligible Holders shall in writing request (such request to be given to the Partnership within five (5) Trading Days of receipt of such notice of the Demand Notice given by the Partnership pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as directed by the Initiating Holder in the Demand Notice.
(iii) Subject to the other limitations contained in this Agreement, the Partnership is not obligated hereunder to effect more than (A) one (1) Demand Registration on Form S-1 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period and (B) two (2) Demand Registrations on Form S-3 (or any equivalent or successor form under the Securities Act) in any twelve (12) month period.
(iv) Notwithstanding any other provision of this Section 2(a), the Company Partnership shall promptly not be required to effect a registration or file a Registration Statement pursuant to this Section 2(a), and may suspend the use of an effective Registration Statement: (and in any event within thirty A) during the period starting with the date that is sixty (3060) days prior to the General Partner’s good faith estimate of the date on which the Company receives such Demand Notice) file with the SECof filing of, and ending on the Company shall thereafter use its best date that is ninety (90) days after the effective date of, a Partnership-initiated registration that is approved by the board of directors of the General Partner, provided that the Partnership is actively employing commercially reasonable efforts to cause such registration statement to become effective; (B) for a period of up to ninety (90) days after the date a Demand Notice is received by the Partnership pursuant to this Section 2(a) if the General Partner determines that the Partnership’s compliance with its obligations under this Agreement would be detrimental to the Partnership because such registration would be reasonably likely to (x) materially interfere with a significant acquisition, financing, merger, reorganization or other similar transaction involving the Partnership or otherwise have a material adverse effect on the Partnership, (y) require disclosure of material information that the Partnership has a bona fide business purpose for preserving as confidential or (z) render the Partnership unable to comply with requirements under applicable securities laws (any such period, a “Suspension Period”); provided, however, that in no event shall the Partnership postpone or defer any Demand Registration pursuant to this Section 2(a)(iv) for more than an aggregate of one hundred and eighty (180) days in any twelve (12) month period.
(v) Notwithstanding any other provision of this Section 2(a), in the event that the managing underwriter of an Underwritten Offering advises the Partnership and the Demand Eligible Holders in writing that, in such managing underwriter’s opinion, the inclusion of all or some Registrable Securities of Demand Eligible Holders in a subject Registration Statement would have a material adverse effect on the timing or success of the Underwritten Offering (including the price received for the securities to be declared effective as promptly as practicableoffered in such Underwritten Offering), the total number of Registrable Securities of each Demand Eligible Holder that shall be included in such Underwritten Offering shall be reduced on a registration statement Pro Rata basis until the total number of Registrable Securities offered in such Underwritten Offering will not, in the opinion of the managing underwriter, have such a material adverse effect. Any Registrable Securities excluded or withdrawn from such Underwritten Offering shall be withdrawn from the registration.
(vi) The Partnership may include in any such Demand Registration other Partnership Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter for the offering determines that the number of Partnership Securities proposed to be offered in such offering would have a material adverse effect on the timing or success of such offering (including the price received for the securities to be offered in such offering), then the Registrable Securities to be sold by the Demand Eligible Holders shall be included in such registration before any Partnership Securities proposed to be sold for the account of the Partnership or any other Person. Any such Registrable Securities to be offered in such offering shall be allocated among the Demand Eligible Holders on a Pro Rata basis.
(vii) Subject to the limitations contained in this Agreement, the Partnership shall effect any Demand Registration on Form S-3 (except if the Partnership is not then eligible to register for resale the Registrable Securities 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 the Partnership becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities through a firm commitment underwriting shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Partnership); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Partnership that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Partnership will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Partnership shall, (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other 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 Demand Eligible Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and sale (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as shall may be selected necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be necessary or appropriate or reasonably requested by the Company and as shall be reasonably acceptable Demand Eligible Holders to the Investor registering enable such Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(which may be by an underwritten offeringix) In the event a Holder transfers Registrable Securities included on a Registration Statement in accordance with Section 7(e), of the total number of and such Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering remain Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate following such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement maytransfer, at the request of such Holder, the Holders submitting the Demand Notice, Partnership shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(Cx) The Company Partnership shall be entitled use commercially reasonable efforts to suspend become eligible to use Form S-3 and, after becoming eligible to use Form S-3, shall use commercially reasonable efforts to remain eligible to use Form S-3, including by timely filing all reports with the use Commission and meeting the other requirements of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d)Exchange Act.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (Hess Midstream Partners LP)
Demand Registration. (Aa) Subject to the terms and conditions of this Agreement, including Section 2(c), if at any time following February 16, 2016, the Company receives a written request from the Investor that the Company register under the Securities Act Registrable Securities representing at least 10% of the then-outstanding Common Stock, 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 covering all Registrable Securities that the Investor requests to be registered. The registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and, if the Company is a WKSI as of the Filing Deadline, shall be an Automatic Shelf Registration Statement. The Company shall use its commercially reasonable efforts to cause the registration statement to be declared effective or 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 (1) the date on which the Investor notifies the Company in writing that 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 statement was declared effective by the SEC, if the Company is a WKSI and filed an Automatic Shelf Registration Statement 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 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 any Suspension Period, pursuant to (d) or pursuant to Section 5(i).
(b) If the Investor intends to distribute the Registrable Securities covered by the Investor’s request by means of an underwriting, (i) the Investor shall so advise the Company as a part of its request made pursuant to Section 2(a) and (ii) the Investor shall have the rightright to appoint the book-running, by written notice (the “Demand Notice”managing and other underwriter(s) given to in consultation with the Company, .
(c) The Company shall not be required to request, at any time and from time to time during such periods when effect a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor registration pursuant to this Section 3.12(a)(ii2: (i) after the Company has effected six registrations 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 during any single calendar year.
(d) Notwithstanding anything to the contrary in this Agreement, (1) upon notice to the Investor, the Company shall promptly 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 (and 90) days in the aggregate in any event within 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 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 on which 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 receives is actively employing in good faith all commercially reasonable efforts to launch such Demand Noticeregistered offering throughout such period, (ii) file the Investor is afforded the opportunity to include Registrable Shares in such registered offering in accordance with Section 3) and (iii) the SEC, 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 thereafter use its best efforts delay any Filing Deadline pursuant to cause this clause (d) for more than ten (10) Business Days, the 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 be declared effective the Company to such effect, and any demand so withdrawn shall not count as promptly as practicablea demand for registration for any purpose under this Section 2, a including Section 2(c).
(e) Notwithstanding the foregoing, if the managing underwriter(s) of an underwritten offering in connection with any registration statement on the appropriate form for the registration and sale as shall be selected by pursuant to this Section 2 advises the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with writing that in its good faith judgment the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders requested to be included in such Demand Notice (a “Demand Registration Statement”). If offering exceeds the Investor registering number of Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate which can be sold in such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be offering at a price acceptable to the Investor registering Investor, then the number of Registrable Securities so requested to be included in such underwritten offering. Any Demand Registration Statement may, at offering shall be reduced to that number of shares which in the request good faith judgment of the Holders submitting the Demand Notice, managing underwriter can be a “shelf” registration pursuant to Rule 415, if availablesold in such offering at such price.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (TCP-ASC ACHI Series LLLP)
Demand Registration. (A) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at At any time and from time to time during such periods when following the expiration of the Lock-Up Period, the Shareholder may request in writing (“Request”) that the Company register under the Securities Act all or part of the Registrable Securities that are Beneficially Owned by the Shareholder or its Affiliates (a) on a Registration Statement on Form S-3 or other available form (a “Demand Registration”) or (b) on a Shelf Registration Statement covering any Registrable Securities (or otherwise designating an existing Shelf Registration Statements Statement with the SEC to cover the Registrable Securities) (a “Shelf Registration”), in each case, covering all the sale or distribution of the Investor’s Registrable Securities is from time to time by the Shareholder, on a delayed or are not existing and effectivecontinuous basis pursuant to Rule 415 of the Securities Act, that including by way of underwritten offering, block sale or other distribution plan designated by the Shareholder. Upon receipt of any Request, the Company registershall as promptly as practicable but in any event not later than the date that is thirty (30) days after receipt by the Company of such Request, under and in accordance with the provisions of the Securities Actthis Agreement, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of file a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file Registration Statement with the SECSEC covering all such Registrable Securities, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution thereof elected by the Shareholder. In the event that any such Request involves a Hedging Arrangement in which the counterparty to the Shareholder uses the Shelf Registration Statement to effect short sales of Registrable Securities, the consent of the Company shall be required in connection with such Request, such consent not to be unreasonably withheld, delayed or conditioned. The Shareholder shall be entitled to make no more than four (which may be by an 4) Requests in any twelve-month period and eight (8) Requests in the aggregate (it being understood that each underwritten offeringoffering under this Agreement shall count as a Request, even if such offering is conducted pursuant to a Shelf Registration Statement, unless the Shareholder withdraws its request in the circumstances described in the second sentence of Section 5.6), and each such Request shall be to register an amount of Registrable Securities having an aggregate value of at least $50,000,000. The Company shall not be obligated to effect a Demand Registration during the total sixty (60) day period following the effective date of a Registration Statement pursuant to any other Demand Registration. Each Request pursuant to this Section 5.1 shall be in writing and shall specify the number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends requested to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company be registered and the Company intended method of distribution of such Registrable Securities. Nothing in this Article 5 shall take all reasonable steps to facilitate such distributionaffect, including the actions required pursuant to Section 3.12(c). The managing underwriters in supersede or otherwise modify any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date restrictions on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances Transfer set forth in Section 3.12(d)Article 2 or any other provision of this Agreement.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Demand Registration. (Aa) The Investor shall have At any time commencing 180 days after the rightdate of this Agreement, by the Holders of at least [10%] of the then outstanding Registrable Stock (the "Requesting Holders") may request, in a written notice to the Company (the “a "Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective"), that the Company register, file a registration statement under and in accordance with the provisions of the Securities Act, all or any portion Act covering the registration of at least [10%] of the Registrable Securities designated by Stock then outstanding in the Investormanner specified in such notice (a "Demand Registration"). Upon Promptly following receipt of a Demand Notice from (such request to state the Investor pursuant number of shares of Registrable Stock to this Section 3.12(a)(iibe so included and the intended method of distribution), the Company shall promptly (and in any event x) within thirty twenty (3020) days notify all other Holders of the date on which the Company receives such Demand Noticerequest in writing and (y) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicableregistered under the Securities Act all Registrable Stock that the Requesting Holders and such other Holders have, a registration statement on the appropriate form for the registration and sale as shall be selected by within ten (10) days after the Company and as shall has given such notice, requested be reasonably acceptable to the Investor registering Registrable Securities registered in accordance with the intended method or methods manner of distribution specified in the Demand Notice by the Requesting Holders.
(which may i) If any Demand Registration is requested to be a "shelf" registration by an underwritten offering), the Requesting Holders of the total number of Registrable Securities specified by the Holders Stock to be included in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringRegistration, it shall promptly so advise the Company and the Company shall take all reasonable steps cause to facilitate such distribution, including the actions required be filed pursuant to Section 3.12(cRule 415 under the Securities Act a shelf Registration Statement (a "Shelf Registration Statement") with respect to the number of shares of Registrable Stock requested to be so registered (a "Shelf Registration"). The managing underwriters in any Company shall keep such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Shelf Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of at least one hundred eighty (180) days from year following the date on which the SEC Commission declares such Shelf Registration Statement effective under the Securities Act (subject to extension pursuant to Section 4(a) and the last paragraph of Section 5 hereof), or such shorter period ending when all of the shares of Registrable Stock covered by such Shelf Registration Statement have been sold.
(ii) Upon the occurrence of any event that would cause the Shelf Registration Statement (A) to contain a material misstatement or omission or (B) to be not effective and usable for resale of Registrable Securities during the period that such Shelf Registration Statement is required to be effective and usable, the Company shall promptly file an amendment to the Shelf Registration Statement, in the case of clause (A), correcting any such misstatement or omission and, in the case of either clause (A) or (B), use its best efforts to cause such amendment to be declared effective and such Shelf Registration Statement to become usable as soon as practicable thereafter.
(c) If the Requesting Holders intend to have the Registrable Stock distributed by means of an Underwritten Offering, the Company shall include such information in the written notice referred to in clause (x) of Section 2(a) above. In such event, the right of any Holder to include its Registrable Stock in such registration shall be conditioned upon such Holder's participation in such Underwritten Offering and the inclusion of such Holder's Registrable Stock in the Underwritten Offering (unless otherwise mutually agreed by a majority in interest of the Requesting Holders and such Holder) to the extent provided below. All Holders proposing to distribute Registrable Stock through such Underwritten Offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters. Such underwriter or underwriters shall be selected by a majority in interest of the Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; PROVIDED, that (i) all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders of Registrable Stock, (ii) any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders of Registrable Stock, and (iii) no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representations required by law or reasonably required by the underwriter. If any Holder of Registrable Stock disapproves of the terms of the underwriting, such Holder may elect to withdraw all its Registrable Stock by written notice to the Company, the managing underwriter and the Initiating Holders. The securities so withdrawn shall also be withdrawn from registration and shall remain Registrable Stock.
(d) Notwithstanding any provision of this Agreement to the contrary,
(i) the Company shall not be required to effect a Demand Registration during the period starting 30 days prior to the estimated date of filing by the Company of, and ending on a date 180 days following the effective date of, a registration statement pertaining to a public offering of equity securities of the Company;
(ii) the Company shall not be required to effect more than one Demand Registration in any six-month period;
(iii) if, in the written opinion of the managing underwriter of any Underwritten Offering, the total amount of Registrable Stock to be registered in connection with a Demand Registration will exceed the maximum amount of the Company's securities that can be marketed (1) at a price reasonably related to the then current market value of such securities or (2) without otherwise materially and adversely affecting the entire offering, then the Company shall include in such Demand Registration Statement effective, as the number of shares of Registrable Stock that in the opinion of such period may managing underwriter can be extended pursuant sold within a price range acceptable to this Section 3.12(a)(ii)(B). The time period for which the Company is required Holders of a majority of the Registrable Stock requested to maintain the effectiveness of any be included in such Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods Requesting Holders pursuant to Section 3.12(d2(a), allocated pro rata among the Requesting Holders on the basis of the relative number of shares of Registrable Stock each such Holder has requested to be included in such registration; and
(iv) occurring if the Company shall furnish to the Requesting Holders a certificate signed by the president of the Company stating that in the good faith opinion of a majority of the Board of Directors of the Company such registration would interfere with respect any material transaction then being pursued by the Company, then the Company's obligation to such Demand Registration Statementuse its best efforts to file a registration statement shall be deferred for a period not to exceed 60 days.
(Ce) The Company shall not be entitled obligated to suspend the use effect more than three Demand Registrations; PROVIDED, HOWEVER, that a Demand Registration shall not be deemed to have been effected for purposes of any effective Registration Statement under this Section 3.12(a)(ii2(e) under unless: (i) it has been declared effective by the circumstances Commission; (ii) it has remained effective for the period set forth in Section 3.12(d5(a) and (iii) the offering of Registrable Stock pursuant to such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than any such stop order, injunction or other requirement of the Commission prompted by any act or omission of a Requesting Holder).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (Guess Inc Et Al/Ca/)
Demand Registration. (Ai) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to requestIf, at any time and from time prior to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effectiveExpiration Date, Initiating Holders request that the Company registerfile a Registration Statement covering Registrable Securities, under and in accordance as soon as practicable thereafter the Company shall use its best efforts to file a Registration Statement with the provisions of the Securities Act, respect to all or any portion of the Registrable Securities designated that it has been requested to register by any Registration Rights Holder and obtain the Investoreffectiveness of such Registration Statement. The Company shall also take all other action necessary under federal or state law or regulation to permit the sale or other disposition pursuant to such Registration Statement of all Registrable Securities requested to be registered and the Company shall maintain such compliance with each such federal and state law and regulation for the period necessary for the Participating Holders to effect the proposed sale or other disposition of Registrable Securities pursuant to such Registration Statement. Notwithstanding the foregoing, the Company shall be entitled to defer a Demand Registration for a period of up to 90 days if and to the extent that the Company's Board of Directors determines, in good faith, that such registration would substantially interfere with a pending corporate transaction.
(ii) Upon receipt of a Demand Notice request for registration from the Investor pursuant to this Section 3.12(a)(ii)Initiating Holders, the Company shall promptly (give written notice to all other Registration Rights Holders of its intention to effect a Demand Registration and shall include in any event such registration all Registrable Securities held by other Registration Rights Holders who request such registration within thirty (30) days of the date on which the Company receives 20 Business Days after such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected notice has been given by the Company and as Company.
(iii) Any request for a Demand Registration shall be reasonably acceptable to specify the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total aggregate number of Registrable Securities specified proposed to be sold by a Registration Rights Holder and the Holders in such Demand Notice intended method of disposition.
(a “iv) If any Demand Registration Statement”). If is requested to be in the Investor registering Registrable Securities intends to distribute any Registrable Securities by means form of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution underwriter shall be acceptable selected and obtained by the holders of a majority of the Included Registrable Securities. Such selection shall be subject to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement mayCompany's consent, at the request of the Holders submitting the Demand Notice, which consent shall not be a “shelf” registration pursuant to Rule 415, if availableunreasonably withheld.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(Cv) The Company shall be entitled required to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided effect a only one registration pursuant to this Section 3.12(a)(ii4(b). If any Registration Statement fails to be declared effective by the SEC by reason of a decision by Participating Holders or the underwriters to withdraw said Registration Statement, or if the Registration Statement fails to be declared effective or, after being declared effective, is stop-ordered by the SEC, in either case, for reasons attributable to a Participating Holder, such Demand Registration shall count for purposes of the limitation set forth in this Section 4(b)(v). If any Registration Statement (1) fails to be declared effective by the SEC for any reason (except (a) by reason of a decision by Participating Holders or underwriters to withdraw said Registration Statement, or (B) for reasons attributable to any Participating Holder), or (2) is stop-ordered by the SEC after being declared effective (other than for reasons attributable to any Participating Holder) such requested registration shall not be exercisable until count for purposes of the Effectiveness Deadlinelimitation set forth in this Section 4(b)(v).
Appears in 1 contract
Demand Registration. (Ai) The Investor If at any time there is no currently effective Shelf Registration Statement on file with the Commission, any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Dynegy (the a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”) given ), to require Dynegy to, pursuant to the Companyterms 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 (or, to requestthe extent permitted under the Commission’s rules and regulations, at any time a prospectus supplement in respect of an existing Registration Statement) in accordance with the intended timing and from time method or methods of distribution thereof specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to time during 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 periods when Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Dynegy be required to effectuate a Shelf Demand Registration for Registrable Securities having an aggregate value of less than $25 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within ten (10) Business Days of the receipt of the Demand Notice, Dynegy 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(b) and subject to the compliance by the applicable Holders of their obligations under this Agreement, file a Registration Statement or Shelf (or, to the extent permitted under the Commission’s rules and regulations, a prospectus supplement in respect of an existing Registration Statements Statement) covering all of the Investor’s Registrable Securities that the Holders shall in writing request (such request to be given to Dynegy within five (5) days of receipt of such notice of the Demand Notice given by Dynegy pursuant to this Section 2(b)(ii)) to be included in such Demand Registration as promptly as reasonably practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use 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 (i) the date that all Registrable Securities covered by such Registration Statement have been sold or (ii) the date that is three (3) years after the original filing date of such Registration Statement (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Dynegy is not obligated hereunder to effect (A) more than one (1) Demand Registration in any twelve (12) month period pursuant to this Agreement, (B) more than a total of three (3) Demand Registrations pursuant to this Agreement (including any Underwritten Offering pursuant to an Underwritten Offering Notice under Section 3(k)) or are (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, Dynegy shall not existing be required to effect a registration or file a Registration Statement (or any amendment thereto) or maintain the effectiveness of a Registration Statement for a period of up to sixty (60) days, if (A) the Board determines that a postponement is in the best interest of Dynegy and effectiveits stockholders relating to a pending transaction involving Dynegy, (B) the Board determines such registration would render Dynegy unable to comply with applicable securities Laws or (C) the Board determines such registration would require disclosure of material information that Dynegy has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided, however, that (1) in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of ninety (90) days in any twelve (12) month period, (2) during any Blackout Period contemplated by Section 2(b)(iv)(B) or any Suspension Period, any Holder that has submitted a Demand Notice may withdraw such Demand Notice by written notice to Dynegy, and (3) during any Blackout Period contemplated by Section 2(b)(iv)(B) or any Suspension Period, Dynegy shall not file a registration statement (or any amendment or supplement thereto) with respect to any Dynegy Security for any other holder of registration rights.
(v) Dynegy may include in any such Demand Registration other Dynegy Securities for sale for its own account or for the Company registeraccount of any other Person; provided that if the managing underwriter, if any, for an Underwritten Offering pursuant to a Demand Notice determines that the type or number of Dynegy 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 Dynegy Securities proposed to be sold for the account of Dynegy or any other Person, and thereafter the amount of Registrable Securities included in such registration to be sold by the Holders shall be reduced on a pro rata basis.
(vi) Subject to the limitations contained in this Agreement, Dynegy shall effect any Demand Registration on Form S-3 (except if Dynegy 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, so long as Dynegy is a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to a Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to Dynegy); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Dynegy that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, Dynegy 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(b), Dynegy 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 provisions securities subject to such Demand Registration, including under the securities Laws of such states as the Securities ActHolders shall reasonably request; provided, all however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Dynegy would become subject to general service of process or any portion 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 designated 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 Investor. Upon receipt Holders to enable the Holders to consummate a public sale of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(which may be by an underwritten offering), of viii) In the total number of event a Holder transfers Registrable Securities specified by the Holders in to another Holder included on a Registration Statement and such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any remain Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate following such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement maytransfer, at the reasonable request of the Holders submitting the Demand Noticesuch Holder, Dynegy shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415, if available.
such Registration Statement; provided that in no event shall Dynegy be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by such Holder or another Holder or (B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Dynegy has received written consent therefor from whom Registrable Securities covered thereby for a period of one hundred eighty have been registered on (180but not yet sold under) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement, other than such Holder or another Holder.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, If at any time and following the Restriction Termination Date, Parent shall receive a request from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all Seller that Parent effect the registration under the 1933 Act of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities, and specifying the intended method of disposition thereof and the number of Registrable Securities designated by the Investor. Upon receipt of requested to be registered (such request, a “Demand Notice from the Investor pursuant to this Section 3.12(a)(iiRegistration”), the Company then Parent shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best reasonable efforts to cause to be declared effective effect, as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by under the Company and as shall be reasonably acceptable to the Investor registering 1933 Act of all such Registrable Securities for which Seller has requested registration in accordance with the intended method or methods of distribution registration procedures set forth in Section 4.03. Parent shall not be obligated to effect more than one Demand Registration; provided, however, that (which may be by an underwritten offering), i) if at the time any Earn-Out Shares are issued to Seller as part of the total number 2012 Earn-Out Payment, Seller shall have previously exercised its Demand Registration, Seller shall have the right to request one additional Demand Registration and (ii) if at the time any Earn-Out Shares are issued to Seller as part of Registrable Securities specified by the Holders in 2013 Earn-Out Payment, Seller shall have previously exhausted all Demand Registrations available to Seller hereunder, Seller shall have the right to request one additional Demand Registration. Seller may, at any time prior to the effective date of the registration statement relating to such Demand Notice (Registration, revoke such request by providing a “Demand Registration Statement”). If the Investor registering Registrable Securities intends written notice to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate Parent revoking such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offeringrequest. Any Demand Registration Statement may, at so revoked prior to the request effective date of the Holders submitting the applicable registration statement shall not count as a Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableRegistration so long as Seller promptly reimburses Parent for all Registration Expenses incurred in respect of such revoked Demand Registration.
(Bb) The Company Parent shall use reasonable best efforts be liable for and pay all Registration Expenses in connection with any Demand Registration, subject to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale final sentence of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B)preceding paragraph. The time period for which the Company is required to maintain the effectiveness of All Selling Expenses incurred in connection with any Demand Registration Statement shall be extended borne by Seller. “Selling Expenses” means all discounts, selling commissions and stock transfer taxes applicable to the aggregate number sale of days Registrable Securities and fees and disbursements of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementcounsel for Seller.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Demand Registration. (A) The Investor shall have the right, by Upon written notice (the “Demand Notice”) given to the Company, to request, Company delivered at any time and from time to time beginning on the one (1)-year anniversary of the Closing Date (each such notice, a “Demand Notice” and each date the Company receives a Demand Notice, a “Demand Date”), the Designee may require the Company to register the applicable Demand Registrable Securities for resale pursuant to a Demand Registration Statement; provided that the Designee may not deliver more than two (2) Demand Notices during such periods when any three hundred sixty five (365) day period. The Company shall then prepare, and, as soon as practicable but in no event later than the applicable Demand Filing Deadline, file with the SEC a Shelf Demand Registration Statement or Shelf Registration Statements on Form S-3 covering the resale of all of the Investor’s applicable Demand Registrable Securities Securities. In the event that Form S-3 is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of unavailable for such a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)registration, the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives use such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective other form as promptly as practicable, is available for such a registration statement on the another appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with Required Holders, subject to the intended method or methods provisions of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”Section 2(g). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Each Demand Registration Statement may, prepared pursuant hereto shall register for resale at the request of the Holders submitting least the Demand Required Registration Amount of Demand Registrable Securities set forth in the applicable Demand Notice, . Each Demand Registration Statement shall contain (except if otherwise directed by the Required Holders or if not permitted under SEC regulations or not advisable under SEC rules or guidance) the “Plan of Distribution” and “Selling Shareholders” sections in substantially the form attached hereto as Exhibit A (it being understood that the Company may include in such sections any such additional information not otherwise contained therein that is required to be a “shelf” registration pursuant to Rule 415, if available.
(B) included in such sections under SEC regulations). The Company shall use its reasonable best efforts to keep each have the applicable Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously declared effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which by the SEC declares such as soon as practicable, but in no event later than the applicable Demand Registration Statement effectiveEffectiveness Deadline. By 9:30 a.m. New York time on the second (2nd) Business Day following the applicable Demand Effective Date, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required shall file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods used in connection with sales pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (Acacia Research Corp)
Demand Registration. (Aa) In case Sebring shall receive from the Registered Holder a written request that Sebring effect a Registration with respect to the resale by the Registered Holder of its Registrable Securities, Sebring will as soon as practicable, effect such Registration (including, without limitation, but subject to the limitations set forth herein, appropriate qualification under applicable state securities laws and appropriate compliance with applicable regulations issued under the Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution by the Registered Holder of all or such portion of such Registrable Securities as are specified in such request. The Investor Registration Statement covering the resale of all of the Registrable Securities shall have be filed for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement required hereunder shall be on Form S-1 (or such other form as may be appropriate).
(b) Sebring shall prepare and file with the right, by written notice Securities and Exchange Commission (the “Demand NoticeSEC”) given such amendments and supplements to the Company, Registration Statement filed under this Section 6.1 as may be reasonably necessary to request, at any time and from time keep such Registration Statement effective until all Registrable Securities have been sold pursuant to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance pursuant to Rule 144. Sebring shall comply with the provisions of the Securities Act, Act with respect to the disposition of all or any portion of the Registrable Securities designated covered by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities Registration Statement during such period in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified disposition by the Holders Registered Holder as set forth in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(Bc) The Company shall use reasonable best efforts right of the Registered Holder to keep each Demand demand that the Registrable Securities be registered for resale may only be exercised once, provided that the Registration Statement filed pursuant to such demand is declared effective.
(d) Sebring shall not be required to effect a demand registration during the period starting with the date sixty (60) days prior to Sebring’s good faith estimate of the date of filing of, and ending on the date ninety (90) days following the effective date of, a Sebring-initiated Registration Statement that is subject to Section 6.2 below, provided that Sebring is actively employing in good faith its reasonable best efforts to cause such Registration Statement to become effective.
(e) Sebring may defer taking any action to effect a Registration pursuant to Section 6.1 if Sebring furnishes to the Registered Holder a certificate signed by the Chief Executive Officer of Sebring stating that in the good faith judgment of the Board of Directors of Sebring it would be materially detrimental to Sebring and its stockholders for the requested registration to be effected (or to remain effective for the period for which the subject registration statement would otherwise be required to remain effective) because such action (x) would materially interfere with a significant acquisition, corporate reorganization or other similar transaction involving Sebring, or (y) would require premature disclosure of material information that Sebring has a bona fide business purpose for preserving as confidential. Sebring shall have the right to defer taking action with respect to the requested Registration pursuant to this Section 3.12(a)(ii6.1 only on one occasion and for a period of not more than sixty (60) continuously effective days after receipt of the Registration request under Section 6.1.
(f) Sebring shall be entitled to include in any Registration Statement referred to in this Section 6.1 shares of Sebring Stock to be sold by Sebring for its own account, except as and usable for to the resale extent that, in the opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Registrable Securities covered thereby for a period to be sold. To the extent that the managing underwriter in any such underwritten public offering requires the exclusion of one hundred eighty (180) days any securities from such offering, all such excluded securities shall come solely from the date on which shares to be sold by Sebring prior to the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness exclusion of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementRegistrable Securities.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Demand Registration. (Aa) The Investor shall have Following the rightLock-up Release Date, by written notice (the “Demand Notice”) given to the Company, to request, if at any time and from time the Shelf Registration Statement pursuant to time during such periods when Section 6.01 is not available for the resale of the Registrable Securities, including if for any reason the Company is ineligible to maintain or use a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effectiveStatement, that the Company registershall, as promptly as reasonably practicable (and, in any event, within (i) 45 days in the case of a Registration Statement on Form S-3 or (ii) 60 days in the case of a Registration Statement on Form S-1) following the written request of Sponsor Stockholder for Registration under and in accordance with the provisions of the Securities Act, Act of all or any portion part of the Registrable Securities designated by (a “Demand Request”), use reasonable best efforts to file a Registration Statement with the Investor. Upon receipt SEC (a “Demand Registration Statement”) with respect to resales of a Demand Notice from the Investor Registrable Securities pursuant to Sponsor Stockholder’s intended method of distribution thereof, and shall, subject to the terms of this Section 3.12(a)(ii)Article VI, use its reasonable best efforts to cause such Demand Registration Statement to be declared effective under the Company shall Securities Act promptly after the filing thereof (and in any event within thirty no later than 60 days after such filing) and, if required, to qualify under the “blue sky” laws of such jurisdictions as Sponsor Stockholder or any underwriter reasonably requests; provided that such Demand Registration Statement shall be filed on (30A) days of the date on which Form S-3, if the Company receives such is then S-3 Eligible, or (B) any other appropriate form under the Securities Act for the type of offering contemplated by Sponsor Stockholder, if the Company is not then S-3 Eligible. Each Demand Notice) file with Request shall specify the SECRegistrable Securities to be Registered, their aggregate amount, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which thereof. Sponsor Stockholder agrees to provide the Company with such information in connection with a Demand Request as may be reasonably requested by an underwritten offering), the Company to ensure that the Demand Registration Statement complies with the requirements of the total number of Registrable Securities specified by Act. Notwithstanding anything in this Agreement to the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringcontrary, it shall promptly so advise the Company and the Company shall take all reasonable steps only be obligated to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each file and cause up to three Demand Registration Statement filed Statements to be declared effective under the Securities Act within any 365-day period pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement6.02.
(Cb) The Company shall be entitled deemed to suspend have effected a Demand Registration for purposes of this Section 6.02, Section 6.03(a) and Section 6.04(a) if the use of any effective Demand Registration Statement under becomes effective by the SEC and remains effective until the earlier of (i) 90 days after the effective date or (ii) such time as all Registrable Securities covered by such Registration Statement have been sold or withdrawn in accordance with this Section 3.12(a)(ii) under 6.02, or if such Registration Statement relates to an Underwritten Offering (as defined below), such longer period as, in the circumstances set forth opinion of outside legal counsel for the underwriter or underwriters, a Prospectus is required by law to be delivered in Section 3.12(d).
connection with sales of Registrable Securities by an underwriter or dealer (D) For the avoidance of doubtapplicable period, the rights “Demand Period” ); provided that (i) if, during the Demand Period, such Registration or the successful completion of the relevant sale is prevented by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, or a Blackout Period or the need to update or supplement the Registration Statement, the Demand Period shall be extended on a day-for-day basis by the number of days such Registration or successful completion is prevented and (ii) no Demand Registration shall be deemed to have been effective for purposes of Section 6.03(a) and Section 6.04(a) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with any Underwritten Offering pursuant to this Section 3.12(a)(ii) shall such Demand Registration are not be exercisable until the Effectiveness Deadlinesatisfied other than by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement by Sponsor Stockholder.
Appears in 1 contract
Demand Registration. (Aa) The Investor Covered Holders shall have the right, by written notice on not more than two occasions in the aggregate, occurring no more frequently than once during any six month period, to require the Company (the “Demand Notice”) given subject to the Company, next sentence) to request, at any time use its reasonable best efforts to register for offer and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, sale under and in accordance with the provisions of the Securities Act, Act all or any a portion of the Registrable Securities designated then outstanding; provided, however, that, without limiting the foregoing, if the Company is S-3 Eligible during any calendar year, then the Covered Holders shall also have the right, on not more than two occasions in the aggregate during such calendar year, to require the Company to register for offer and sale pursuant to a Registration Statement on Form S-3 (which shall be a "shelf" Registration Statement pursuant to Rule 415 under the Securities Act, or a successor provision) if so requested by a majority of the InvestorCovered Holders (which majority shall be calculated based on the number of Registrable Securities held by all Covered Holders) all or a portion of the Registrable Securities then outstanding. Upon receipt of As promptly as practicable after the Company receives a Demand Notice notice from the Investor pursuant Covered Holders (a "Demand Notice") demanding that the Company register for offer and sale under the Securities Act Registrable Securities having as to this each Registration an expected aggregate offering price of at least $10,000,000, subject to Section 3.12(a)(ii2(b), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Noticei) file with the SECCommission a Registration Statement relating to the offer and sale of the Applicable Securities on Form S-3, and or if Form S-3 is not available, on such other form as the Company shall thereafter may reasonably deem appropriate and, thereafter, (ii) use its best all reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the date of filing of such Registration Statement; provided, however, that no Covered Holder shall be entitled to be named as a selling stockholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Covered Holder is an Electing Holder. Subject to Section 2(b), the Company shall use all reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by Covered Holders for resales of Registrable Securities for an Effectiveness Period ending on the earlier of (i) 90 days from the Effective Time of such Registration Statement (two years in the case of a shelf registration pursuant to Rule 415 or any successor rule thereto on Form S-3) and (ii) such time as all of such securities have been disposed of by the selling stockholders.
(b) If the Company determines in good faith based upon the advice of counsel that the use of such Registration would result in a disclosure of information that would materially and adversely affect any proposed or pending material acquisition, merger, business combination or other material transaction involving the Company and that such disclosure is not in the best interests of the Company and its stockholders, the Company shall have the right (i) to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, (ii) to fail to keep such Registration Statement continuously effective and (iii) not to amend or supplement the Registration Statement or included Prospectus after the effectiveness of the Registration Statement; provided that no one such postponement shall exceed 90 days in any six month period and all such postponements shall not exceed 120 days in the aggregate in any 12 month period. The Company shall advise the Purchasers of any such determination as promptly as practicable.
(c) The Company may include in any registration requested pursuant to Section 2(a) hereof other securities for sale for its own account or for the account of another Person, provided that such inclusion shall not affect the number of Applicable Securities that can be sold in the related offering. In connection with an underwritten offering, if the managing underwriter or un- derwriters advise the Company in writing that in its or their opinion the number of Applicable Securities requested by Covered Holders to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable 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, pro rata among the Covered Holders that have requested their Applicable Securities to be registered and (ii) second, any other securities requested to be included in such Registration.
(d) The Covered Holders requesting any Registration pursuant to Section 2(a) hereof shall have the right to withdraw such request, without such Registration being deemed to have been effected (and, therefore, requested) for purposes of Section 2(a), (i) prior to the time the Registration Statement in respect of such Registration has been declared effective, (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 such Covered Holders are prevented pursuant to Section 2(c) hereof from selling all of the Applicable Securities they requested to be registered. Notwithstanding the foregoing, the Registration requested by such Covered Holders shall be deemed to have been effected (and, therefore, requested) for purposes of Section 2(a) hereof if the Covered Holders withdraw any Registration request pursuant to Section 2(a) hereof (i) after the Commission filing fee is paid in full with respect to all Applicable Securities requested to be registered or (ii) as a result of the provisions of Section 2(c) hereof in circumstances where at least 75% of the Applicable Securities requested to be included in such Registration by the Covered Holders demanding such Registration have been included, and in each case, (x) the Company has not availed itself of Section 2(b) or Section 7(j) with respect to such Registration request or (y) the Company has availed itself of Section 2(b) or Section 7(j) hereof and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 2(b) or Section 7(j) hereof. If the Covered Holders withdraw a request pursuant to Section 2(a) but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Covered Holders shall be entitled to participate in such Registration pursuant to Section 3 hereof, but in such case the Intended Offering Notice (as defined in Section 3) shall be required to be given to the Covered Holders at least 10 business days prior to the anticipated filing date of the registration statement on and such Covered Holders shall be required to give the appropriate form for Piggy-back Notice no later than 5 business days after the registration and sale as Company's delivery of such Intended Offering Notice.
(e) In the event that any Registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with Covered Holders participating therein, and the intended method or methods of distribution (which may other co-lead managing underwriter shall be by an underwritten offering), of the total number of Registrable Securities specified selected by the Covered Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company participating therein and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be reasonably acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableCompany.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (Strayer Education Inc)
Demand Registration. (Aa) The Investor Holders shall have the right, following the Effective Date, by written notice (the “a "Demand Notice”") given to the CompanyIBC, to request, at any time and from time request IBC to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, register under and in accordance with the provisions of the Securities Act, Act all or any portion of the Registrable Securities designated by such Holders; provided, however, that the Investoraggregate number of Registrable Securities requested to be registered pursuant to any Demand Notice and pursuant to any related Demand Notices received pursuant to the following sentence shall be at least 1,000,000. Upon receipt of a any such Demand Notice, IBC shall promptly notify all other Holders of the receipt of such Demand Notice from and allow them the Investor opportunity to include Registrable Securities held by them in the proposed registration by submitting their own Demand Notice. In the event that such Demand Registration involves an underwritten offering and the managing underwriter or underwriters participating in such offering advise the Holders in writing of Registrable Securities to be included in such offering so that the total number of Registrable Securities to be included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Registrable Securities to be sold), then the amount of Registrable Securities to be offered for the account of such Holders shall be reduced pro rata on the basis of the number of Registrable Securities to be registered by each such Holder. The Holders as a group shall be entitled to (i) unlimited Demand Registrations prior to the Trigger Date and (ii) three Demand Registrations following the Trigger Date, each pursuant to this Section 3.12(a)(ii5.01(a). If any Demand Registration does not become effective or is not maintained for a period (whether or not continuous) of at least 120 days (or such shorter period as shall terminate when all the Registrable Securities covered by such Demand Registration have been sold pursuant thereto), the Company such Demand Registration shall promptly be disregarded and deemed not to have been made.
(and in any event within thirty (30b) Within 45 days of the date on which the Company IBC receives such a Demand Notice) Notice from Holders in accordance with Section 5.01(a), IBC shall file with the SECCommission, and the Company IBC shall thereafter use its best efforts to cause to be declared effective as promptly as practicableeffective, a registration statement Registration Statement on the 35 30 appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities sale, in accordance with the intended method or methods of distribution (which may be by an underwritten offering)distribution, of the total number of Registrable Securities specified by the Holders in such Demand Notice Notice, which may include a "shelf" registration (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration "Shelf Registration") pursuant to Rule 415, if available415 promulgated under the Securities Act (a "Demand Registration").
(Bc) The Company IBC shall use commercially reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) 5.01 continuously effective and usable for the resale of the Registrable Securities covered thereby (i) in the case of a Registration that is not a Shelf Registration, for a period of one hundred eighty (180) 120 days from the date on which the SEC Commission declares such Demand Registration Statement effective and (ii) in the case of a Shelf Registration, for a period of 180 days from the date on which the Commission declares such Registration Statement effective, in either case (x) until all the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement and (y) as such period may be extended pursuant to this Section 3.12(a)(ii)(B5.01.
(d) IBC shall be entitled to postpone the filing of any Registration Statement otherwise required to be prepared and filed by IBC pursuant to this Section 5.01, or suspend the use of any effective Registration Statement under this Section 5.01, for a reasonable period of time, but not in excess of 90 days (a "Delay Period"), if the Chairman of the Board of Directors of IBC determines that in such person's reasonable judgment and good faith the registration and distribution of the Registrable Securities covered or to be covered by such Registration Statement would materially interfere with any pending material financing, acquisition or corporate reorganization or other material corporate development involving IBC or any of its Subsidiaries or would require premature disclosure thereof and promptly gives the Holders written notice of such determination, containing a reference to this Section 5.01(d) and an approximation of the period of the anticipated delay; provided, however, that (i) the aggregate number of days included in all Delay Periods during any consecutive twelve-month period shall not exceed the difference between (x) 120 days and (y) the number of days occurring during all Hold Back Periods and Interruption Periods during such consecutive twelve-month period, and (ii) a period of at least 60 days shall elapse between the termination of any Delay Period, Hold Back Period or 36 31 Interruption Period and the commencement of the immediately succeeding Delay Period. If IBC shall so postpone the filing of a Registration Statement, the Holders of Registrable Securities to be registered shall have the right to withdraw the request for registration by giving written notice from the Holders of a majority of the Registrable Securities that were to be registered to IBC within 45 days after receipt of the notice of postponement and, if earlier, before the termination of such Delay Period (and, in the event of such withdrawal, such request shall not be counted for purposes of determining the number of requests for registration to which the Holders of Registrable Securities are entitled pursuant to this Section 5.01). The time period for which the Company IBC is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods Delay Periods, all Hold Back Periods and all Interruption Periods occurring during such Registration and such period and any extension thereof is hereinafter referred to as the "Effectiveness Period". IBC shall not be entitled to initiate a Delay Period unless it shall (A) to the extent permitted by agreements with other security holders of IBC, concurrently prohibit sales by such other security holders under registration statements covering securities held by such other security holders and (B) in accordance with IBC's policies from time to time in effect, prohibit purchases and sales in the open market by senior executives and certain other employees of IBC.
(e) IBC shall not include any securities that are not Registrable Securities in any Registration Statement filed pursuant to Section 3.12(d) occurring with respect to 5.01 without the prior written consent of the Holders of a majority in number of the Registrable Securities covered by such Demand Registration Statement.
(Cf) The Company shall Holders of a majority in number of the Registrable Securities to be entitled to suspend the use of any effective included in a Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) 5.01 may, at any time prior to the effective date of the Registration Statement relating to such Registration, revoke such request by providing a written notice to IBC revoking such request. The Holders of Registrable Securities who revoke such request shall reimburse IBC for all its out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement; provided, however, that, if such revocation was based on IBC's failure to comply in any 37 32 material respect with its obligations hereunder, such reimbursement shall not be exercisable until the Effectiveness Deadlinerequired.
Appears in 1 contract
Sources: Intercompany Agreement (Infinity Broadcasting Corp /De/)
Demand Registration. (Aa) The Investor To the extent that no Primary Registration Statement or Shelf Registration Statement registering all Registrable Securities which are held by ICGI Holdings or its members or which are then eligible to be issued upon an Exchange is effective, ICGH LLC shall have the right, by right at any time on or following the fourteen (14) month anniversary of the IPO to deliver a written notice request to the Company (the a “Demand Notice”) given to requiring that it effect the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, registration under and in accordance with the provisions of the Securities Act, Act of all or any portion of the Registrable Securities designated by specified in the InvestorDemand Notice provided that the Demand Notice covers the registration of Registrable Securities with estimated aggregate gross proceeds in excess of $[ ] million (a “Demand Registration”) and specifies the intended method of disposition of the Registrable Securities subject of the Demand Notice. Upon receipt of a Demand Notice from Notice, the Investor Company shall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 2.2(d), the registration under the Securities Act of the Registrable Securities for which ICGH LLC has requested registration under this Section 2.2, (or such larger number of Registrable Securities of ICGH LLC as the Company shall determine in its discretion to include in such Demand Registration), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered. For so long as no Primary Registration Statement or Shelf Registration Statement registering all Registrable Securities which are held by ICGI Holdings or its members or which are then eligible to be issued upon an Exchange is effective, ICGH LLC shall be entitled to an unlimited number of Demand Registrations pursuant to this Section 3.12(a)(ii2.2; provided, that (i) the Company shall not be obligated to effect more than one demand registration during any six-month period, and (ii) the Company shall not be obligated to effect a Demand Registration in the event that a Piggyback Registration (as defined below) had been available to ICGH LLC and consummated within the 90 days preceding the date of the Demand Notice.
(b) At any time prior to the effective date of the registration statement relating to such registration, ICGH LLC may revoke such Demand Registration request by providing a notice to the Company revoking such request. The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration.
(c) If a Demand Registration or a Takedown involves a Public Offering and the managing underwriter advises the Company and ICGH LLC that, in its view, the number of Registrable Securities 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 promptly (and include in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, registration a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by equal to the Holders Maximum Offering Size, in the following order of priority:
(i) first, all Registrable Securities requested to be registered in such Demand Notice Registration or Takedown, allocated, if necessary for the offering to not exceed the Maximum Offering Size, pro rata among the members of ICGI Holdings (including members participating in a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to a Piggyback Registration described in Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to 2.3) on the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request basis of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale relative number of shares of the Registrable Securities covered thereby requested to be included in such registration; and
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other persons, with such priorities among them as the Company shall determine.
(d) Upon notice to ICGH LLC, on one occasion, pursuant to Section 2.1(a), Section 2.1(b) or this Section 2.2(d),during any period of six consecutive months for a period reasonable time specified in the notice but not exceeding an aggregate of one hundred eighty 120 days (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may not be extended pursuant to this Section 3.12(a)(ii)(Bor renewed). The time period for , the Company may postpone effecting a registration if (i) the Company shall determine in good faith that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which had then been commenced or (ii) the Company is required to maintain in possession of material non-public information the effectiveness disclosure of any Demand Registration Statement shall be extended by which during the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to period specified in such Demand Registration Statement.
(C) The notice the Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth believes in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall good faith would not be exercisable until in the Effectiveness Deadlinebest interests of the Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Imperial Capital Group, Inc.)
Demand Registration. (Aa) The Investor shall have Upon the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all request of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and Holders of a majority in accordance with the provisions of the Securities Act, all or any portion interest of the Registrable Securities designated by requesting that the Investor. Upon receipt Company effect the registration under the Securities Act of a Demand Notice from all or part of such Holders’ Registrable Securities and specifying the Investor pursuant to this Section 3.12(a)(ii)intended method of disposition thereof, the Company shall will promptly (give written notice of such requested registration to all Holders, and in any event within thirty (30) days of the date on which thereupon the Company receives such Demand Notice) shall, on or prior to the Filing Date, prepare and file with the SECCommission a "resale" Registration Statement providing for the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-1 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-1, in which case such registration shall be on another appropriate form in accordance herewith and with the Securities Act and the rules promulgated thereunder). Such Registration Statement shall cover to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. The Company shall thereafter (i) not permit any securities other than the Registrable Securities and the securities listed on Schedule II hereto to be included in the Registration Statement and (ii) use its best efforts to cause the Registration Statement to be declared effective as promptly as practicableunder the Securities Act on or before the Effectiveness Date, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in keep such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for under the resale Securities Act until such date as is the earlier of (x) the date when all Registrable Securities covered thereby for a period of one hundred eighty by such Registration Statement have been sold or (180y) days from the date on which the SEC declares such Demand Registration Statement effective, as such period Registrable Securities may be extended sold without any restriction pursuant to this Section 3.12(a)(ii)(BRule 144 as determined by the counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent to such effect (the "Effectiveness Period"). The Company shall request that the effective time period of the Registration Statement is 4:00 p.m. Eastern Time on the effective date. If at any time and for which the Company any reason, an additional Registration Statement is required to maintain be filed because at such time the effectiveness actual number of any Demand shares of Common Stock into which the Warrants are exercisable plus the number of Common Shares exceeds the number of shares of Registrable Securities remaining under the Registration Statement, the Company shall have twenty (20) Business Days to file such additional Registration Statement, and the Company shall use its best efforts to cause such additional Registration Statement shall to be extended declared effective by the aggregate number of Commission as soon as possible, but in no event later than ninety (90) days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementafter filing.
(Cb) The Company shall be entitled Notwithstanding anything to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances contrary set forth in this Section 3.12(d).
(D) For 2, in the avoidance event the Commission does not permit the Company to register all of doubtthe Registrable Securities in the Registration Statement because of the Commission’s application of Rule 415, the rights provided pursuant Company shall register in the Registration Statement such number of Registrable Securities as is permitted by the Commission, provided, however, that the number of Registrable Securities to be included in such Registration Statement or any subsequent registration statement shall be determined in the following order: (i) first, the Common Shares shall be registered on a pro rata basis among the holders of such Common Shares, and (ii) second, the shares of Common Stock issuable upon exercise of the Warrants shall be registered on a pro rata basis among the holders of the Warrants. In the event the Commission does not permit the Company to register all of the Registrable Securities in the initial Registration Statement, the Company shall use its best efforts to file subsequent Registration Statements to register the Registrable Securities that were not registered in the initial Registration Statement as promptly as possible and in a manner permitted by the Commission. For purposes of this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.2(b), “
Appears in 1 contract
Demand Registration. (Ai) The Investor shall have As soon as practicable, but in no event later than the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)Filing Deadline, the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SECSEC a Registration Statement on Form SB-2 covering the resale of all the Registrable Securities. If Form SB-2 is unavailable for such a Registration, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for register the resale of the Registrable Securities covered thereby for on another appropriate form reasonably acceptable to the Holders of at least a period majority of one hundred eighty (180) days from the date Registrable Securities and undertake to register the Registrable Securities on which the SEC declares such Demand Registration Statement effective, Form SB-2 as soon as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which form is available, provided that the Company is required to shall maintain the effectiveness of any Demand the Registration Statement shall be extended then in effect until such time as a Registration Statement on Form SB-2 covering the Registrable Securities has been declared effective by the aggregate number of days of all suspension periods pursuant SEC. The Company shall use its reasonable best efforts to Section 3.12(d) occurring with respect to have such Demand Registration StatementStatement declared effective by the SEC as soon as practicable, but in no event later than the Effectiveness Deadline.
(Cii) The Company shall be entitled prepare and file with the SEC such amendments and supplements to suspend the use of any effective Registration Statement filed under this Section 3.12(a)(ii3(a)(ii) under as may be reasonably necessary to keep such Registration Statement effective until all Registrable Securities have been sold pursuant to such Registration Statement or pursuant to Rule 144. The Company shall comply with the circumstances provisions of the Act with respect to the disposition of all Registrable Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the Holders as set forth in Section 3.12(d).such Registration Statement
(Diii) For In the avoidance of doubtevent the Registration Statement required to be filed with the SEC pursuant to Section 3(a)(i) is not filed with the SEC by the Filing Deadline, the rights provided Company shall issue to the Registered Holder an additional warrant for each 30-day period (or a portion thereof) during which time such Registration Statement has not been filed with the SEC, which additional warrants shall be issued on the first day of each 30-day period commencing on the Filing Deadline. In addition, if the Registration Statement required to be filed with the SEC pursuant to this Section 3.12(a)(ii3(a)(i) shall is not be exercisable until declared effective by the SEC by the Effectiveness Deadline, the Company shall issue to the Registered Holder an additional warrant for each 30-day period (or a portion thereof) during which time such Registration Statement has not been declared effective by the SEC, which additional warrants shall be issued on the first day of each 30-day period commencing on the Effectiveness Deadline. Each such additional warrant (each, an “Additional Warrant”) shall be identical to this Warrant, except that: (A) it shall be exercisable for a number of shares equal to 10% of the number of shares into for which this Warrant may be exercised; (B) the exercise price shall be 125% of the Exercise Price; and (C) it shall be dated the date the Company is obligated to issue the Warrant under this Section 3(a)(iii).
Appears in 1 contract
Demand Registration. (A) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at At any time and from time to time during such periods when beginning on the date that the Company files with the SEC its Annual Report on Form 10-K for -13- US-DOCS\70827213.10 the fiscal year ended December 31, 2017, the Shareholder may request in writing (“Request”) that the Company register under the Securities Act all or part of the Registrable Securities that are Beneficially Owned by the Shareholder or its Affiliates (a) on a Registration Statement on Form S3 or other available form (a “Demand Registration”) or (b) on a Shelf Registration Statement covering any Registrable Securities (or otherwise designating an existing Shelf Registration Statements Statement with the SEC to cover the Registrable Securities) (a “Shelf Registration”), in each case, covering all the sale or distribution of the Investor’s Registrable Securities is from time to time by the Shareholder, on a delayed or are not existing and effectivecontinuous basis pursuant to Rule 415 of the Securities Act, that including by way of underwritten offering, block sale or other distribution plan designated by the Shareholder. Upon receipt of any Request, the Company registershall as promptly as practicable but in any event not later than the date that is thirty (30) calendar days after receipt by the Company of such Request, under and in accordance with the provisions of the Securities Actthis Agreement, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of file a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file Registration Statement with the SECSEC covering all such Registrable Securities, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (thereof elected by the Shareholder. In the event that any such Request involves a Hedging Arrangement in which may be by an underwritten offering)the counterparty to the Shareholder uses the Shelf Registration Statement to effect short sales of Registrable Securities, the consent of the total Company shall be required in connection with such Request, such consent not to be unreasonably withheld, delayed or conditioned. The Shareholder shall be entitled to make no more than four (4) Requests in any twelve-month period and eight (8) Requests in the aggregate (it being understood that each underwritten offering under this Agreement shall count as a Request, even if such offering is conducted pursuant to a Shelf Registration Statement, unless the Shareholder withdraws its request in the circumstances described in the second sentence of Section 5.6, and each such Request shall be to register an amount of Registrable Securities having an aggregate value of at least $50,000,000. The Company shall not be obligated to effect a Demand Registration during the sixty (60) calendar day period following the effective date of a Registration Statement pursuant to any other Demand Registration. Each Request pursuant to this Section 5.1 shall be in writing and shall specify the number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends requested to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company be registered and the Company intended method of distribution of such Registrable Securities. Nothing in this Article 5 shall take all reasonable steps to facilitate such distributionaffect, including the actions required pursuant to Section 3.12(c). The managing underwriters in supersede or otherwise modify any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date restrictions on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances Transfer set forth in Section 3.12(d)Article 2 or any other provision of this Agreement.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Demand Registration. (Aa) The Investor Request by Holders; Revocation/Modification of Request.
(i) At any time following the earlier of 180 days after the effective date of the registration statement for the Initial Public Offering and the expiration of the period during which the managing underwriters for the Initial Public Offering shall have prohibit the rightCompany from effecting any other public sale or distribution of Ordinary Shares, by upon the written notice request of Holder(s) (other than Company Holders) holding in the “aggregate $50 million of Registrable Securities (based on the closing trading price of the applicable Registrable Securities on the last trading day prior to the date of any request) (such requesting Holder(s) being referred to collectively as the "Requesting Holder"), the Requesting Holder may request (each such request, a "Demand Notice”Registration") given to that the Company, to requestat the Requesting Holder's option, at either (i) effect the registration under the Securities Act of all or part of the Registrable Securities held by such Requesting Holder and specifying the intended method of disposition thereof, or (ii) effect the registration of all or any time and of such Requesting Holder's Registrable Securities by filing a registration statement on Form F-3 (or any successor thereto) or other applicable form under the Securities Act which provides for the sale by the Requesting Holder of its Registrable Securities from time to time during such periods when on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a "Shelf Registration"), provided that the option to request a Shelf Registration Statement or Shelf Registration Statements covering all shall be available only following the first anniversary of the Investor’s effective date of the registration statement for the Initial Public Offering. For each request, the Company will use its reasonable best efforts to effect the registration under the Securities Act of such Registrable Securities is or are not existing and effective, that the Company register, under and all other Registrable Securities requested by Participating Holders (as defined below) to be included in such Demand Registration in accordance with Section 2(c)(i) below, to the provisions extent necessary to permit the disposition in accordance with such Holder's requests of the Securities Act, all or any portion of the Registrable Securities designated so requested to be registered. The number of Registrable Securities requested to be included in a Demand Registration involving an underwritten offering by the Investor. Upon receipt of a Demand Notice from Requesting Holder and any Participating Holders (as defined below) shall be allocated on the Investor pursuant to this Section 3.12(a)(ii), same terms and conditions between the Company shall promptly (firm commitment and the underwriters' over-allotment option in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file accordance with market practice after consultation with the SEC, managing underwriter. The Requesting Holder and the Company shall thereafter use its best efforts consult with one another at the beginning of, and throughout, the registration process to cause coordinate the timing of the proposed offering. Except as otherwise expressly provided herein, if more than one Holder comprises the Requesting Holder for any Demand Registration, failing agreement among such Holders in respect of any decision or action to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected taken by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities Requesting Holder in accordance connection with the intended method such Demand Registration, such decision or methods of distribution (which action may be taken by an underwritten offering), majority vote of the total number of Registrable Securities specified requested to be sold by such Holders.
(ii) At any time prior to the Holders effective date of the registration statement relating to a Demand Registration, the Requesting Holder may revoke such request, without liability to any of the Participating Holders, by providing a notice of such revocation to the Company. A request, so revoked, shall be considered to be a Demand Registration unless (w) such revocation arose out of an act or omission of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), including without limitation for this purpose any such revocation in response to a material adverse development or disclosure with respect to the business or financial condition of the Company, which development or disclosure was not known to the Requesting Holder otherwise to be charged with a Demand Registration, or (x) such revocation is in response to a Delay Notice (as defined below), or (y) such revocation is in response to a “Pricing Notice (as defined below), or (z) the Requesting Holder reimburses the Company for all Registration Expenses of such revoked request. In the case of a Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of for an underwritten offering, it shall promptly so advise the Company agrees to use commercially reasonable efforts to notify the Requesting Holder if the price for any Ordinary Shares or Ordinary Share Equivalent to be registered for sale for the account of the Company is expected to occur outside of any expected pricing range previously disclosed in writing by the Company (or any "pricing" or similar committee formed for such purpose) to the Requesting Holder (each such a notice, together with the pricing notices described in Sections 2(f) and 3(b) below, a "Pricing Notice"); provided that the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in not have any such distribution shall be acceptable obligation with respect to any registration involving the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at registration of Ordinary Shares or Ordinary Share Equivalents only for the request account of parties other than the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableCompany.
(Biii) The At any time prior to the effective date of the registration statement relating to a Demand Registration, the Requesting Holder may modify its request, without liability to any of the Participating Holders, by providing a written notice of such modification to the Company shall use reasonable best efforts to keep each and, in a Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubtan underwritten offering, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadlinemanaging underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (Aspen Insurance Holdings LTD)
Demand Registration. (Ai) The Investor shall have At any time after the rightfirst anniversary of the issuance of the Conversion Shares, by the Holder may make a written notice demand to require the Company to Register all (and not a portion) of its Registrable Securities; provided, however, if the “Demand Notice”Conversion Shares are not issued as of October 5, 2024, the Holder may make a demand to require the Company to Register all (and not a portion) given to the Company, to request, of its Registrable Securities at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all after the issuance of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions Conversion Shares. Each such demand shall be referred to as a “Demand Registration.” The Holder shall be entitled to two (2) Demand Registrations. A Demand Registration may be for a shelf offering pursuant to Rule 415 of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt Act and/or for a underwritten public offering (“Underwritten Offering”).
(ii) The Holder’s notice of a Demand Notice from Registration shall specify the Investor pursuant number of Registrable Securities sought to this Section 3.12(a)(ii)be registered and the manner in which such securities are to be sold.
(iii) In the event that the Demand Registration is for an Underwritten Offering, the Company Holder shall promptly (select the managing Underwriter or Underwriters to administer the Underwritten Offering and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as underwriter or underwriters shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution Company (which may consent shall not be by an underwritten offering)unreasonably withheld, of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”conditioned or delayed). If The Company shall have no responsibility for engaging any underwriter(s) for such Underwritten Offering. In such event, the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company Holder and the Company shall take all reasonable steps to facilitate enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such distribution, including underwriting by the actions required pursuant to Section 3.12(c)holders initiating the Demand Registration. The managing underwriters Company shall not grant any Person the right to include any securities in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableUnderwritten Offering.
(Biv) The Company shall use reasonable best efforts to keep each A Registration will not count as a Demand Registration until the Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which with the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
has been declared effective and the Company has complied with all of its obligations under this Agreement with respect thereto (C) The Company shall be entitled to suspend including the use Company’s maintaining effectiveness for the duration of any the Effectiveness Period (as defined below)); and the Holder has disposed of its Registrable Shares as contemplated by such effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubtprovided, however, that if, after such Registration Statement has been declared effective, the rights provided offering of Registrable Securities pursuant to this a Demand Registration is interfered with by any stop order or injunction of the SEC or any other Governmental Entity or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) the Holder elects to continue the offering; provided, further, that (x) if the Holder is entitled to withdraw its Demand Registration request as a result of conditions outside the Holder’s control and, if such request is withdrawn, such Demand Registration will not count as a Demand Registration and the Company will pay all expenses related to such registration subject to Section 3.12(a)(ii2.04 hereof, (y) if the Holder is entitled to withdraw its Demand Registration request other than as a result of conditions outside the Holder’s control and, if such request is withdrawn, such Demand Registration will count as a Demand Registration and the Holder will pay all expenses related to such Demand Registration request and (z) the Company shall not be exercisable obligated to file a second Registration Statement until the Effectiveness Deadlinea Registration Statement that has been filed is counted as a Demand Registration or is terminated.
Appears in 1 contract
Demand Registration. (Aa) The Investor shall Subject to Section 2(b), after the Company becomes eligible to utilize Form S-3 Registration Statements, if (i) the Company takes any action that results in the termination of such Form S-3 eligibility, so that the Resale Shelf Registration can no longer be used upon failure or (ii) the Company fails to have the righta Resale Shelf Registration declared effective within 90 days after it becomes eligible to utilize Form S-3 Registration Statements, by Purchaser may thereafter make a written notice request (the “"Demand Notice”") given for registration under the Act (a "Demand Registration") of Transfer Restricted Securities (such securities are sometimes herein referred to as "Demand Securities"), subject to Blackout Periods of up to 90 days in any period of twelve consecutive months. The Demand Notice will specify the Company, number of Demand Securities proposed to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated be sold by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (Purchaser and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with will also specify the intended method or methods of distribution disposition thereof. Following receipt of a Demand Notice, the Company will, as promptly as is reasonably practicable, file a registration statement, and the related prospectus (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “"Demand Registration Statement”)" and, together with the Shelf Registration Statement, the "Registration Statement") on any appropriate form which will cover the Demand Securities that the Company has been so requested to register by the Purchaser and use its reasonable efforts to cause such Registration Statement to become effective.
(b) The Company will not be required to effect more than two such Demand Registrations. The Company will not grant to future purchasers registration rights that are superior to or limit the Purchaser's registration rights granted herein. A registration requested pursuant to this Section 2(b) will not be deemed to have been effected (and it will not count as one of the Demand Registrations) unless the Demand Registration Statement relating thereto has become effective under the Act and the Purchaser (together with its permitted transferees, as applicable) has been offered the reasonable opportunity to sell its Demand Securities under the Demand Registration Statement; provided, however, that if, after such Demand Registration Statement has become effective, the offering of the Demand Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court, such registration will be deemed not to have been effected.
(c) If the Investor registering Registrable offering of Demand Securities intends pursuant to distribute any Registrable Securities by means such registration will be in the form of an underwritten offering, it shall promptly so and if the managing underwriter or underwriters of such offering advise the Company and the Purchaser that in their view the number of Demand Securities requested to be included in such offering may materially and adversely affect the success of such offering, the Company shall take all reasonable steps to facilitate will include in such distribution, including registration the actions required pursuant to Section 3.12(c). The aggregate number of Demand Securities which in the view of such managing underwriter or underwriters in can be sold without any such distribution shall material adverse effect. If any Demand Securities are required to be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed excluded pursuant to this Section 3.12(a)(ii) continuously effective and usable for 2, the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days Demand Securities to be included in such registration will be reduced to the extent necessary to reduce the total number of all suspension periods pursuant Demand Securities to Section 3.12(d) occurring with respect be included in the offering to the number recommended by such Demand Registration Statementmanaging underwriter or underwriters.
(Cd) The Company shall be entitled to suspend postpone for a reasonable period of time (but not exceeding 45 days) the use filing of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided registration statement otherwise required to be prepared and filed by it pursuant to this Section 3.12(a)(ii2 if (i) shall the Board of Directors of the Company determines in good faith that effecting such a registration or continuing such disposition at such time would have a material adverse effect upon a proposed sale of all (or substantially all) of the assets of the Company or a merger, reorganization, recapitalization or similar current transaction materially affecting the capital structure or equity ownership of the Company, or (ii) if the Company is in possession of material information which the Board of Directors of the Company determines in good faith it is not be exercisable until in the Effectiveness Deadlinebest interests of the Company to disclose in a registration statement at such time; provided, however.
Appears in 1 contract
Sources: Registration Rights Agreement (Dualstar Technologies Corp)
Demand Registration. (Ai) The Investor Any Sponsoring Holder shall have the option and right, exercisable by delivering a written notice to the Company (the a “Demand Notice”) given ), to require the Company to, pursuant to the Companyterms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to request, at any time and from time Rule 415 pursuant to time during such periods when a Shelf Registration Statement (a “Demand Registration”). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the dollar amount of the Registrable Securities of the Initiating Holder to be included therein is reasonably likely to result in gross sale proceeds of at least $25 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice.
(ii) Within five Business Days (or if the Registration Statement will be a Shelf Registration Statements Statement, within two Business Days) after the receipt of the Demand Notice, the Company shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to the Company within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by the Company pursuant to this Section 2(b)(ii)). The Company shall use reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until the earlier of (A) 180 days (or two years if a Shelf Registration Statement is requested) after the Effective Date or (B) the date on which all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, that such period shall be extended for a period of time equal to the period the Holders refrain from selling any securities included in such Registration Statement at the request of an underwriter of the Company or the Company pursuant to this Agreement.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering, (B) more than a total of one Demand Registration for which Laurel or any transferee of Laurel in accordance with Section 10(e) is the Initiating Holder, (C) more than a total of one Demand Registration for which SH Ventures or any transferee of SH Ventures in accordance with Section 10(e) is the Initiating Holder, and (D) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Investor’s Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is or are not existing sufficient to permit offers and effective, that sales of the Company register, under number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the provisions intended timing and method or methods of distribution thereof specified in the Demand Notice. Subject to the foregoing sentence, following the date of this Agreement, Riverstone and, upon the expiration of the Lockup Period, the Schlumberger Parties (or, in each case, any transferee thereof in accordance with Section 10(e)) shall each be permitted to be the Initiating Holder for an unlimited number of Demand Registrations (including any demands for registration of the offer and sale of Registrable Securities Acton Form S-3 (so long as the Company is eligible to use Form S-3)). 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 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(b)(iii) if, as a result of Section 2(b)(vi)(A), 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 $25 million and (ii) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(iv) A Holder may withdraw all or any portion of the its Registrable Securities designated by included in a Demand Registration from such Demand Registration at any time prior to the Investoreffectiveness of the applicable Registration Statement. Upon receipt of a Demand Notice notice from the Investor pursuant Initiating Holder that the Initiating Holder is withdrawing an amount of its Registrable Securities from the Demand Registration such that the remaining amount of Registrable Securities of the Initiating Holder to this Section 3.12(a)(ii)be included in the Demand Registration is reasonably likely to result in gross sale proceeds below the Minimum Amount, the Company shall promptly 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(b)(iii) unless (A) the Initiating Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to the Company’s request for suspension pursuant to Section 3(o).
(v) The Company may include in any event within thirty such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Section 2(b)(vi) and Section 2(d)(iii).
(30vi) days In the case of a Demand Registration not being underwritten, if the Initiating Holder advises the Company that in its reasonable opinion the aggregate number of securities requested to be included exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the date on which securities offered or the Company receives such Demand Notice) file with market for the SECsecurities offered, and the Company shall thereafter 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 then held by each such Holder; (B) second, if there remains availability for additional securities to be included in such Demand Registration, the Company; and (C) third, if there remains availability for additional securities to be included in such Demand Registration, any other holders 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.
(vii) The Company shall use its reasonable best efforts to cause qualify for registration on Form S-3. To the extent an Automatic Shelf Registration Statement has been filed, the Company shall use commercially reasonable efforts to remain a WKSI and not become an ineligible issuer (as defined in Rule 405 under the Securities Act) during the period during which such Automatic Shelf Registration Statement is required to remain effective. If the Automatic Shelf Registration Statement has been outstanding for at least three years, at the end of the third year the Company shall refile a new Automatic Shelf Registration Statement covering the Registrable Securities that remain unsold. If at any time when the Company is required to re-evaluate its WKSI status, the Company determines that it is not a WKSI, the Company shall use commercially reasonable efforts to refile the Shelf Registration Statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective during the period during which such registration statement is required to be declared effective as promptly as practicablekept effective. Subject to the limitations contained in this Agreement, a the Company shall effect any Demand Registration on such appropriate registration statement on form of the appropriate form for the registration and sale Commission (A) as shall be selected by the Company and (B) as shall be reasonably acceptable to permit the Investor registering disposition of the Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering)disposition specified in the Demand Notice; provided, that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the total number Demand Registration for any offering and selling of Registrable Securities specified shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders in to enable the Holders to consummate a public sale of such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand 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 mayand such Registrable Securities remain Registrable Securities following such Transfer, at the request of such Holder, the Holders submitting the Demand Notice, Company shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415such Registration Statement; provided, if available.
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 the Company shall use reasonable best efforts to keep has received written consent therefor from each Demand Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for Statement, other than the resale Holder, Affiliates of the Registrable Securities covered thereby for a period Holder or transferees of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration StatementHolder.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (Liberty Oilfield Services Inc.)
Demand Registration. (Ai) The Investor To the extent its Registrable Securities are not included on a Registration Statement filed under Section 2(a) above, the Holder shall have the option and right, exercisable by delivering a written notice to the Company (the a “Demand Notice”) given ), to require the Company to, pursuant to the Companyterms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to request, at any time and from time Rule 415 pursuant to time during such periods when a Shelf Registration Statement or (a “Demand Registration”); provided, however, that in no event shall any eligible Holder be entitled to exercise more than two Demand Registrations for its Registrable Securities. The Demand Notice must set forth the name and address of the Holder, the number of Registrable Securities that the Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary in this Section 2(b), in no event shall the Company be required to effectuate a Demand Registration for Registrable Securities representing an Equity Percentage of less than 5% (the “Minimum Amount”). For the avoidance of doubt, no Shelf Registration Statements Statement filed or maintained effective pursuant to Section 2(a) shall constitute a Demand Registration, and no provision of this Section 2(b) shall limit Section 2(a), including the Company’s obligation to maintain an effective Shelf Registration Statement for the Effectiveness Period that covers all Registrable Securities.
(ii) Within five Business Days of the receipt of a Demand Notice, the Company shall, subject to the limitations of this Section 2(b), file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall cover all of the Registrable Securities to be included in the Demand Registration. The Company shall use its commercially reasonable best efforts to cause such Registration Statement to be declared and remain effective under the Securities Act during the Effectiveness Period.
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 180 days of the closing of any Underwritten Offering or such longer period of time as may be set forth in the underwriters’ lock-up agreement for the Underwritten Offering (provided such Underwritten Offering is completed), (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Investor’s Registrable Securities held by the Holder providing such Demand Notice shall have become effective under the Securities Act and remains effective under the Securities Act and is or are not existing sufficient to permit offers and effective, that sales of the Company register, under number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the provisions intended timing and method or methods of distribution thereof specified in the Demand Notice or (C) more than one Demand Registration or Underwritten Offering every 180 days. 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 the period required pursuant to Section 2(b)(ii), in which case the Holder shall be entitled to an additional Demand Registration in lieu thereof. For the avoidance of doubt, notwithstanding Section 2(b)(iii)(A), the Company shall be obligated to file the Shelf Registration Statement contemplated by Section 2(a) within five Business Days after the date hereof regardless of whether the Company has conducted an Underwritten Offering within 180 days of the Securities Act, date hereof.
(iv) The Holder may withdraw all or any portion of the its Registrable Securities designated 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 InvestorHolder to the effect that the 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 may, at its option, cease all efforts to secure effectiveness of the applicable Registration Statement. Upon receipt Such registration shall be deemed a Demand Registration unless (i) the Holder shall have paid or reimbursed the Company for its pro rata share of all commercially 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 Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (ii) the withdrawal is made (A) following the occurrence of a Demand Notice from Material Adverse Change or (B) because the Investor pursuant Registration Statement would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential.
(v) Subject to the limitations contained in this Section 3.12(a)(ii)Agreement, the Company shall promptly (and in effect any event within thirty (30) days Demand Registration on such appropriate registration form of the date on which the Company receives such Demand NoticeCommission (x) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and (y) as shall be reasonably acceptable to permit the Investor registering disposition of the Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering)disposition specified in the Holder’s requests for such registration; provided that if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the total number Demand Registration for any offering and selling of Registrable Securities specified by the Holders in such Demand Notice (a “Demand shall be effected pursuant to an Automatic Shelf Registration Statement”, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and the Investor registering Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringincluded on such Registration Statement, it shall promptly so advise the Company will amend or supplement such Registration Statement as soon as reasonably practicable as may be necessary in order to enable such offering to take place.
(vi) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(b), the Company shall take (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 Holder shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all reasonable steps other acts and things that may be commercially reasonably necessary or appropriate or reasonably requested by the Holder to facilitate enable the Holder to consummate a public sale of such distributionRegistrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(vii) In the event the Holder transfers Registrable Securities included on a Registration Statement, including the actions required pursuant to Shelf Registration Statement contemplated by Section 3.12(c2(a). The managing underwriters in any , and such distribution shall be acceptable to the Investor registering Registrable Securities in remain Registrable Securities following such underwritten offering. Any Demand Registration Statement maytransfer, at the request of the Holders submitting Holder, the Demand Notice, Company shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415such 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, if available.
Affiliates of the Holder or transferees of the Holder, (B) The the Company shall use reasonable best efforts to keep each Demand has received written consent therefor from whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for Statement, other than the resale Holder, Affiliates of the Registrable Securities covered thereby for a period Holder or transferees of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
Holder and (C) The the Company shall receives a written request from the subsequent transferee, requesting that its shares of Common Stock be entitled to suspend included in the use of any effective Registration Statement under this Section 3.12(a)(ii) under Statement, with all information reasonably requested by the circumstances set forth in Section 3.12(d)Company.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (Silverbow Resources, Inc.)
Demand Registration. (Aa) The Investor On or prior to each Filing Date, the Company shall have prepare and file with the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when Commission a Shelf Registration Statement or Shelf Registration Statements covering all the resale of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any such maximum portion of the Registrable Securities designated as permitted by SEC Guidance (provided that the Investor. Upon receipt Company shall use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, the Manual of Publicly Available Telephone Interpretations D.29) that are not then registered on an effective Registration Statement for an offering to be made on a Demand Notice from the Investor continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-1 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-1, in which case such registration shall be on another appropriate form in accordance herewith) and shall contain (unless otherwise directed by at least an 85% majority in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Section 3.12(a)(ii)Agreement, the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter 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 all Registrable Securities covered by such Registration Statement have been sold, or may be sold without volume restrictions pursuant to Rule 144(k), 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 Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. New York City time on a Trading Day. The Company shall immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. New York City time on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within 1 Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(b). Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), 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 first be reduced by warrants and other derivative securities of the Company then subject to registration under the Registration Statement (applied, in the case that some warrants may be registered, on a pro rata basis based on the total number of unregistered warrants), second by securities held directly or indirectly by either a director or officer of the Company or holder of greater than ten percent (10%) of the Company’s securities, except for Purchasers or affiliates thereof, and third by the remaining Common Stock (applied, in the case that some Common Stock may be registered, on a pro rata basis based on the total number of unregistered Common Stock).
(b) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as promptly soon as practicablepossible thereafter, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable but in any event prior to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution Effectiveness Date therefor. Such Registration Statement shall contain (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions except if otherwise required pursuant to Section 3.12(c). The managing underwriters in any written comments received from the Commission upon a review of such distribution shall be acceptable to Registration Statement) the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request "Plan of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep each Demand such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(c) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within 10 Trading Days after the receipt of comments by or notice from the Commission that such amendment is required in order for such Registration Statement to be declared effective, or (iv) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission by its Effectiveness Date, or (v) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than 10 consecutive calendar days or more than an aggregate of 15 calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clause (i), and (iv) the date on which such Event occurs, and for purpose of clause (ii) the date on which such five Trading Day period is exceeded, and for purpose of clause (iii) the date which such 10 calendar day period is exceeded, and for purpose of clause (v) the date on which such 10 or 15 calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any unregistered Registrable Securities then held by such Holder. The parties agree that the Company shall not be liable for liquidated damages under this Agreement to the extent of the amount of Common Stock excluded from a Registration Statement pursuant to SEC Guidance that sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement. If the Company fails to pay any partial liquidated damages pursuant to this Section 3.12(a)(iiin full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) continuously effective and usable for to the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days Holder, accruing daily from the date on which the SEC declares such Demand Registration Statement effectivepartial liquidated damages are due until such amounts, as plus all such period may be extended interest thereon, are paid in full. The partial liquidated damages pursuant to this Section 3.12(a)(ii)(B). The time period the terms hereof shall apply on a daily pro rata basis for which any portion of a month prior to the Company is required to maintain the effectiveness cure of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementan Event.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (Patient Safety Technologies, Inc)
Demand Registration. (A) The Investor Initiating Holders shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that the Company register, register under and in accordance with the provisions of the Securities Act, Act all or any portion of the Registrable Securities designated by the Investorsuch Initiating Holders. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)Notice, the Company shall promptly (and in any event within thirty ten (3010) Business Days from the date of receipt of such Demand Notice), notify each Holder (other than the Initiating Holders) of the receipt of such Demand Notice and allow such other Holder the opportunity to include Registrable Securities held by such Holders in the proposed registration by submitting its own written notice to the Company within ten (10) Business Days of receipt of the Company notice to such other Holder. The Company, within forty-five (45) days of the date on which the Company receives such the Demand Notice) , shall file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor Holders registering Registrable Securities Securities, in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor Holders registering Registrable Securities intends intend to distribute any Registrable Securities by means of an underwritten offering, it they shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be mutually acceptable to the Investor Company and the Holders registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Investment Agreement (First Federal Bancshares of Arkansas Inc)
Demand Registration. (Aa) The Investor shall have Stockholder or any subsequent ------------------- Holder of a Majority of the right, by Registrable Securities may make a written notice request for registration under the Securities Act pursuant to this Section 2 of all or part of their Registrable Securities (the “"Demand Notice”) given to the CompanyRegistration"), to requestprovided, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective------------------- however, that the Company registershall be required to effect no more than four (4) Demand Registrations under this Section 2, and provided further that the Company shall not be required to effect a Demand Registration under and in accordance with this Section 2 at any time prior to the provisions of thirtieth day following the Securities Act, all or any portion of the Registrable Securities designated by the InvestorIPO Date. Upon receipt of a request for a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)Registration, the Company shall (i) as soon as reasonably practicable, cause to be filed, and use all reasonable efforts to cause to be declared effective, a registration statement (the "Demand Registration ------------------- Statement"), on such appropriate form as the Company in its discretion shall --------- determine, providing for the sale of all of such Registrable Securities by such Stockholder or Holder, as the case may be, and (ii) promptly (give written notice to all other Holders of Registrable Securities that such Demand Registration is to be effected and shall include in the Demand Registration Statement such additional Registrable Securities with respect to which it has received written requests for registration from any event such other Holder within thirty (30) 15 days of after the date on which the Company receives gave such Demand Notice) file with notice. A Holder's request must specify the SEC, aggregate number of Registrable Securities proposed to be registered and sold and must also specify the intended method of disposition thereof. The Company shall thereafter agrees to use its best efforts to cause to be declared keep the Demand Registration Statement continuously effective and usable for resale of Registrable Securities for a period of not less than nine (9) months. The Company will pay all Registration Expenses in connection with any Demand Registration.
(b) A registration will not count as promptly as practicablea Demand Registration until a Demand Registration Statement has become effective; provided, however, that if a registration statement Demand Registration Statement does not become effective solely by reason of any act or omission on the appropriate form part of a Holder or Holders whose Registrable Securities are included in the Demand Registration Statement, such registration shall nevertheless count as a Demand Registration unless the Holders of such Registrable Securities reimburse the Company for the registration and sale as shall be selected all Registration Expenses reasonably incurred by the Company and as which are attributable to such registration.
(c) If the Holder or Holders initially requesting registration so elect, the offering of the Registrable Securities pursuant to a Demand Registration shall be reasonably acceptable to in the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means form of an underwritten offering. In such event, it shall promptly so if the managing underwriter of such offering advise the Company and the Holders in writing that in its opinion the aggregate number of securities requested to be included in the Demand Registration is sufficiently large to materially and adversely affect the success or offering price of the offering, then the Company shall take all reasonable steps to facilitate will include in the Demand Registration only the aggregate number of securities which in the opinion of such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in underwriter can be sold without any such distribution material adverse effect, and such securities shall be acceptable allocated pro rata among the Holders of Registrable Securities based on the number of Registrable Securities requested to be included in such Demand Registration by the respective Holders (before any such securities are allocated to the Investor registering Company or any holder of securities other than Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableSecurities).
(Bd) The Company shall agrees (i) not to effect any public or private sale, distribution or 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 30-day period prior to, and during the 90- day period beginning on, the closing date of an underwritten offering under a Demand Registration Statement, and (ii) to use its reasonable best efforts to keep cause each Demand Registration Statement filed holder of its securities (other than securities purchased 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 this Section 3.12(a)(iiRule 144 under the Securities Act.
(e) continuously effective and usable for the resale of the Registrable Securities covered thereby The Company may postpone for a reasonable period of one hundred eighty (180) days from time, not to exceed 60 days, the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain filing or the effectiveness of any Demand Registration Statement shall if the Board of Directors of the Company in good faith determines that (A) the Demand Registration can be extended reasonably expected to have a material adverse effect on any plan or proposal by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring Company with respect to such Demand Registration Statementany financing, acquisition, recapitalization, reorganization or other material transaction, or (B) the Company is in possession of material non-public information that, if publicly disclosed, could 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.
(Cf) The If at any time the Holder of a Majority of the Registrable Securities to be covered by a Demand Registration Statement desires to sell Registrable Securities in an underwritten offering, such Holder shall have the right to select any nationally recognized investment banking firm to administer the offering, subject to the approval of the Company, which approval will not be unreasonably withheld, and the Company shall be entitled to suspend enter into an underwriting agreement with the use underwriter of any effective Registration Statement under this Section 3.12(a)(ii) under such offering, which agreement shall contain such representations and warranties by the circumstances set forth Company, and such other terms, conditions and indemnities, as are at the time customarily contained in Section 3.12(d)underwriting agreements for similar offerings.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Registration Rights Agreement (Official Payments Corp)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given Subject to the Companyconditions of this Section 2.1, to request, if at any time after the earlier of March 31, 2017 and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, that date the Company registerfiles its Annual Report on Form 20-F for the year ending December 31, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)2016, the Company shall promptly receive a written request from a Holder or group of Holders that the Company register under the Securities Act Shares with an aggregate value (and in any event within thirty (30based on the SC Trading Average) days of at least $1.0 million as of the date on which of such request (a “Demanding Holder”) then the Company receives such Demand Notice) file with shall, subject to the SEClimitations of this Section 2.1, and the Company shall thereafter use its best efforts to cause to be declared effective effect, as promptly as reasonably practicable, the registration under the Securities Act of all Registrable Securities that the Holder requests to be registered. Any such requested registration shall hereinafter be referred to as a “Demand Registration” and any such registration statement on filed with the appropriate form for the registration and sale as SEC shall be selected by referred to as a “Demand Registration Statement.”
(b) If a demanding Holder so elects, an offering of Registrable Securities pursuant to a Demand Registration shall be in the Company and as form of an underwritten offering. Such demanding Holder shall have the right to select the managing underwriter or underwriters to administer the offering; provided such managing underwriter or underwriters shall be reasonably acceptable to the Investor registering Company.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1: (i) after the Company has effected five (5) registrations pursuant to this Section 2.1, and each of such registrations has been declared or ordered effective and kept effective by the Company as required by Section 2.4(a) of this Agreement, (ii) with respect to a registration of Registrable Securities during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the launch date of, and ending on a date ninety (90) days after the closing date of, a Company-initiated registered offering of equity securities or securities convertible into or exchangeable for equity securities; provided that the Company is actively employing in good faith all commercially reasonable efforts to launch such registered offering, (iii) during any Scheduled Black-out Period, (iv) if the Company has notified the Holder that in the good faith judgment of the Company, it would be materially detrimental to the Company or its securityholders for such registration to be effected at such time, or (v) if the filing or initial effectiveness of a Demand Registration Statement at any time would require the Company to make disclosure of any event that the Board of Directors of the Company determines would not be in the best interests of the Company and its shareholders due to a pending transaction, investigation or other event, including any public disclosure of material non-public information, where such disclosure would, at that time, materially adversely affect the Company and its shareholders; provided, further that in the case of clauses (ii), (iv) or (v), the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Holder; provided that such right to delay a request shall be exercised by the Company for not more than two (2) periods in any twelve (12) month period and not more than ninety (90) days in the aggregate in any twelve (12) month period.
(d) Promptly upon receipt of any request for a Demand Registration pursuant to Section 2.1(a) (but in no event more than five (5) Business Days thereafter), the Company shall deliver a written notice (a “Demand Notice”) of any such registration request to all other Holders of Registrable Securities, and the Company shall include in such Demand Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) Business Days after the date that the Demand Notice has been delivered. All requests made pursuant to this Section 2.1(d) shall specify the aggregate amount of Registrable Securities to be registered and the intended method of distribution of such securities.
(e) If the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities included in a Demand Registration advise the Board of Directors of the Company in writing that, in its or their opinion, the number of securities requested to be included in such Demand Registration exceeds the number that can be sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the securities to be included in such Demand Registration shall be:
(i) first, up to 100% of the Registrable Securities that the demanding Holder proposes (or Holders propose) to include in the Demand Registration;
(ii) second, and only if all the securities referred to in clause (i) have been included, the number of Registrable Securities that, in the opinion of such managing underwriter or underwriters can be sold without having such adverse effect, with such number to be allocated pro rata among the other Holders that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such other Holder (provided that any securities thereby allocated to any such other Holder that exceed such other Holder’s request shall be reallocated among the remaining requesting Holders in like manner); and
(iii) third, and only if all the securities referred to in clauses (i) and (ii) have been included, the number of securities that the Company proposes to include in such registration that, in the opinion of the managing underwriter or underwriters can be sold without having such adverse effect.
(f) Any registration pursuant to this Section 2.1 may be required by the demanding Holders to be effected by means of a shelf registration statement filed with the SEC if the Company qualifies to file using either (i) Form F-3 or S-3 or (ii) any successor form or other appropriate form under the Securities Act (a “Shelf Registration Statement”) relating to any or all of the Registrable Securities in accordance with the intended method or methods of and distribution (which may be by an underwritten offering), of set forth in the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Shelf Registration Statement may, at and Rule 415 under the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) Securities Act. The Company shall use its commercially reasonable efforts to cause any Shelf Registration Statement to remain effective, including by filing extensions of the Shelf Registration Statement, until the termination of the period contemplated in Section 2.6. The Company shall use its reasonable best efforts to keep each Demand such Shelf Registration Statement filed continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by Holders until the earlier of (i) the date as of which all Registrable Securities have been sold pursuant to this the Shelf Registration Statement or another registration statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 3.12(a)(ii4(3) continuously effective and usable for the resale of the Registrable Securities covered thereby for a Act and Rule 174 thereunder) and (ii) until the termination of the period of one hundred eighty (180) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this contemplated in Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement2.6.
(Cg) If the continued use of such Shelf Registration Statement at any time would require the Company to make disclosure of any event that the Board of Directors of the Company determines would not be in the best interests of the Company and its shareholders due to a pending transaction, investigation or other event, including any public disclosure of material non-public information, where such disclosure would, at that time, materially adversely affect the Company and its shareholders, the Company may, upon giving at least ten (10) days’ prior written notice of such action to the Holders, suspend all Holders’ ability to use the Shelf Registration Statement (a “Shelf Suspension”); provided that the Company shall not be permitted to exercise a Shelf Suspension for more than two (2) periods in any twelve (12) month period and not more than ninety (90) days in the aggregate in any twelve (12) month period. In the case of a Shelf Suspension, the Holders agree to suspend use of the applicable prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. The Company shall be entitled to suspend immediately notify the use Holders upon the termination of any effective Registration Statement under this Section 3.12(a)(ii) under Shelf Suspension, amend or supplement the circumstances set forth in Section 3.12(d)prospectus, if necessary, so it does not contain any material untrue statement or omission and furnish to the Holders such numbers of copies of the prospectus as so amended or supplemented as the Holders may reasonably request.
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at At any time following the one (1) year anniversary of the Initial Closing Date (or such earlier date if the Company waives in writing the transfer restrictions contained in Article 5 hereof) if there is no registration statement in effect pursuant to Section 6.2 hereof, the Purchaser may make two (2) written requests for registration under the Securities Act covering the resale of the Initial Common Stock, the Warrant Shares and the Additional Common Stock, if any (all of them, together with any shares of capital stock issued or issuable, from time to time during such periods when time, upon any reclassification, share combination, share subdivision, stock split, share dividend, merger, consolidation or similar transaction or event or otherwise as a Shelf Registration Statement distribution on, in exchange for or Shelf Registration Statements covering all with respect to any of the Investor’s foregoing, in each case held at the relevant time by the Purchaser, the "Registrable Securities") by the Purchaser (each, a "Demand Registration"), it being understood that the Purchaser shall not be able to exercise its second right for a Demand Registration until after the achievement of the development milestone set forth in Section 1.2(e) hereof. Any such request will specify the number of shares of Registrable Securities is or are not existing and effective, that the Company register, under and in accordance with the provisions of the Securities Act, all or any portion of the Registrable Securities designated proposed to be offered for sale by the Investor. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (Purchaser and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with will also specify the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offeringdisposition thereof. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii6.1 is referred to as a "Demand Registration Statement."
(b) continuously effective and usable for If the resale Purchaser elects, the offering of the Registrable Securities covered thereby for a period of one hundred eighty (180) days from the date on which the SEC declares pursuant to such Demand Registration Statement effectivewill be in the form of an underwritten offering. Subject to the reasonable approval of the Company (not to be unreasonably withheld or delayed), the Purchaser will select the managing underwriter and any additional underwriters in connection with the offering. If, in connection with any Demand Registration that is to be an underwritten offering, the Company or any other stockholders also desire to sell shares of Common Stock and the managing underwriter of an underwritten public offering determines and advises in writing that the inclusion of all Registrable Securities proposed to be included in the underwritten public offering, together with any shares proposed to be sold by the Company for its own account and any other issued and outstanding shares of Common Stock or other securities proposed to be included therein by holders other than the holders of Registrable Securities (such other holders' shares hereinafter collectively referred to as the "Other Shares"), would interfere with the successful marketing of the securities proposed to be included in the underwritten public offering, including the price at which such period may securities can be extended pursuant sold, then the Company will include in such registration (i) first, the Registrable Securities requested to this Section 3.12(a)(ii)(B)be included by the Purchaser so that the total number of Registrable Securities to be included in such offering for the account of the Purchaser will not exceed the number recommended by such managing underwriter, (ii) second, the shares of Common Stock the Company proposes to offer for sale, which number of shares to be registered will be reduced to the extent necessary to reduce the total number of shares to be included in such offering to the number recommended by such managing underwriter and (iii) third, such number of Other Shares as the holders thereof desire to offer for sale and the Company and the managing underwriter recommend be included in such offering. The time period for which Purchaser shall be permitted to remove all or any part of the Company is required to maintain the effectiveness of Registrable Securities held by it from any Demand Registration Statement shall be extended by at any time prior to the aggregate number effective date of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to the registration statement covering such Demand Registration StatementRegistrable Securities.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Collaborative Development and Marketing Agreement (King Pharmaceuticals Inc)
Demand Registration. (Ai) The Investor If at any time there is no currently effective Shelf Registration Statement on file with the Commission, any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written notice to Prairie (the a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”) given ), to require Prairie to, pursuant to the Companyterms 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 (or, to requestthe extent permitted under the Commission’s rules and regulations, at any time a prospectus supplement in respect of an existing Registration Statement) in accordance with the intended timing and from time method or methods of distribution thereof specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to time during Rule 415 (a “Demand Registration”). The Demand Notice must set forth the number and type of Registrable Securities that the Initiating Holder intends to include in such periods when Demand Registration. Notwithstanding anything to the contrary herein, in no event shall Prairie be required to effectuate a Shelf Demand Registration for Registrable Securities having an aggregate value of less than $50 million based on the VWAP of such Registrable Securities as of the date of the Demand Notice.
(ii) Within five (5) Business Days of the receipt of the Demand Notice, Prairie shall give written notice of such Demand Notice to all Holders and, within ten (10) Business Days thereafter, shall, subject to the limitations of this Section 2(b) and subject to the compliance by the applicable Holders of their obligations under this Agreement, file a Registration Statement or Shelf (or, to the extent permitted under the Commission’s rules and regulations, a prospectus supplement in respect of an existing Registration Statements Statement) covering all of the Investor’s Registrable Securities of the same type that the Holders shall in writing request (such request to be given to Prairie within five (5) days of receipt of such notice of the Demand Notice given by Prairie pursuant to this Section 2(b)(ii)) to be included in such Demand Registration as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as promptly as reasonably practicable and remain effective under the Securities Act until the earlier of (i) the date that all Registrable Securities covered by such Registration Statement have been sold or (ii) the date that is three (3) years after the original filing date of such Registration Statement (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, Prairie is not obligated hereunder to effect (A) more than one (1) Demand Registration in any six (6) month period pursuant to this Agreement, (B) more than a total of three (3) Demand Registrations pursuant to this Agreement (including any Underwritten Offering pursuant to an Underwritten Offering Notice under Section 3(k)) 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 Agreement, Prairie shall not be required to effect a registration or file a Registration Statement (or any amendment thereto) or maintain the effectiveness of a Registration Statement for a period of up to sixty (60) days on any one occasion, if (A) the Board determines in good faith that a postponement is in the best interest of Prairie and its stockholders relating to a pending material transaction involving Prairie or (B) the Board determines in good faith that revisions to the Registration Statement are required so that it will not existing and effectivecontain any untrue statement of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (any such period, a “Blackout Period”); provided, however, that (1) in no event shall there be more than two Blackout Periods in any twelve (12) month period, (2) during any Blackout Period contemplated by Section 2(b)(iv)(B), any Holder that has submitted a Demand Notice may withdraw such Demand Notice by written notice to Prairie, and (3) during any Blackout Period contemplated by Section 2(b)(iv)(B), Prairie shall not file a registration statement (or any amendment or supplement thereto) with respect to any security for any other holder of registration rights or otherwise.
(v) Prairie may include in any such Demand Registration other Equity Securities for sale for its own account or for the Company registeraccount of any other Person; provided that if the managing underwriter, if any, for an Underwritten Offering pursuant to a Demand Notice determines that the type or number of Equity 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 Equity Securities proposed to be sold for the account of Prairie or any other Person, and thereafter the amount of Registrable Securities included in such registration to be sold by the Holders shall be reduced on a pro rata basis.
(vi) Subject to the limitations contained in this Agreement, Prairie shall effect any Demand Registration on Form S-3 (except if Prairie 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, so long as Prairie is a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to a Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to Prairie); provided, however, that if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Prairie that it intends to effect an offering of all or part of the Registrable Securities of the same type included on such Registration Statement, Prairie 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(b), Prairie 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 provisions securities subject to such Demand Registration, including under the securities Laws of such states as the Securities ActHolders shall reasonably request; provided, all however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Prairie would become subject to general service of process or any portion 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 designated 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 Investor. Upon receipt Holders to enable the Holders to consummate a public sale of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii), the Company shall promptly (and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(which may be by an underwritten offering), of viii) In the total number of event a Holder transfers Registrable Securities specified by the Holders in to another Holder included on a Registration Statement and such Demand Notice (a “Demand Registration Statement”). If the Investor registering Registrable Securities intends to distribute any remain Registrable Securities by means of an underwritten offering, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate following such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement maytransfer, at the reasonable request of the Holders submitting the Demand Noticesuch Holder, Prairie shall amend or supplement such Registration Statement as may be a “shelf” registration necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to Rule 415, if available.
such Registration Statement; provided that in no event shall Prairie be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by such Holder or another Holder or (B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed pursuant to this Section 3.12(a)(ii) continuously effective and usable for the resale of the Prairie has received written consent therefor from whom Registrable Securities covered thereby for a period of one hundred eighty have been registered on (180but not yet sold under) days from the date on which the SEC declares such Demand Registration Statement effective, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement, other than such Holder or another Holder, but in no event shall the foregoing otherwise affect the right of such Holder as a successor beneficiary of this Agreement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kansas City Power & Light Co)
Demand Registration. (Aa ) The Investor Holders of 25% or more of the then existing Registrable Shares held by all Major Holders shall have the right, by written notice (the “"Demand Notice”") given to the CompanyCompany so long as this Agreement has not been terminated in accordance with Section 9.1 hereof, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effective, request that the Company register, register under and in accordance with the provisions of the Securities Act, Act all or any portion part of the Registrable Securities Shares designated by such holders; provided, that the Investor. Upon receipt of a Demand Notice from may not be exercised prior to 180 days after the Investor date of this Agreement. The Demand Notice shall specify shall specify the amount of Registrable Shares to be registered and the intended methods of disposition thereof. The Major Holders shall be entitled in the aggregate to one Demand Registration pursuant to this Section 3.12(a)(ii)2 unless a Demand Registration did not become effective or was not maintained effective for a period (whether or not continuous) of at least 120 days or such shorter period at the end of which all Registrable Shares covered by such Demand Registration have been sold pursuant thereto, in which case the Holders will be entitled in the aggregate to one additional Demand Registration pursuant hereto for each instance in which the condition set forth above had not been satisfied.
(b ) The Company shall file with, and shall use reasonable best efforts to cause to be declared effective by, the Company shall promptly (and in any event SEC within thirty (30) 90 days of the date on which the Company first receives such the Demand Notice) file with Notice given by the SEC, and the Company shall thereafter use its best efforts Major Holders pursuant to cause to be declared effective as promptly as practicableSection 2 hereof, a registration statement on Registration Statement under the appropriate form for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable Securities Act relating to the Investor registering Registrable Securities in accordance with the intended method or methods of distribution (which may be by an underwritten offering), of the total number of Registrable Securities Shares specified by the Holders in such Demand Notice (a “"Demand Registration"); provided, that the Company shall have the right for a reasonable period of time not in excess of 90 days (exercisable by delivery of reasonable notice to the Major Holders of Registrable Shares included in such Registration Statement”). If ) to delay the Investor registering Registrable Securities intends to distribute filing of such Registration Statement if, in the Company's good faith exercise of its reasonable business judgment, (i) such registration and offering would adversely affect or interfere with a pending bona fide corporate transaction involving, or any Registrable Securities by means bona fide financing by, the Company, (ii) the Company is in possession of an underwritten offeringmaterial information that it determines, it shall promptly so advise if disclosed in a registration statement, would have a material adverse effect on the business or operations of the Company and would not otherwise be required under law to be publicly disclosed or (iii) the Company shall take all reasonable steps to facilitate is engaged in a program for the purchase of any shares of Company Common Stock, unless such distribution, including repurchase program and the actions required requested registration may proceed concurrently pursuant to Section 3.12(c). The managing underwriters an exemption from Rule 10b6 under the Exchange Act; provided, that the Company may so delay the filing of such Registration Statement with respect to any one Demand Registration twice, but no more than twice, in any such distribution shall be acceptable to the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availabletwelve-month period.
(Bc ) The Company shall agrees to use reasonable best efforts to keep each Demand any Registration Statement filed pursuant to this Section 3.12(a)(ii) 2 continuously effective and usable for the resale of the Registrable Securities covered thereby Shares for a period of one hundred eighty (180) 120 days from the date on which the SEC declares such Registration Statement effective or such shorter period which will terminate when all the Registrable Shares covered by such Registration Statement have been sold pursuant to such Registration Statement. The foregoing notwithstanding, the Company shall have the right to suspend the use of the Registration Statement for a reasonable length of time not exceeding with respect to any one Demand Registration Statement effectivean aggregate of 90 days (a "Delay Period") if and only if in the good faith exercise of the Company's reasonable business judgment (i) such use would adversely affect or interfere with a pending bona fide corporate transaction involving, as or any bona fide financing by, the Company, (ii) the Company is in possession of material information that it determines, if disclosed in a registration statement, would have a material adverse effect on the business or operations of the Company and would not otherwise be required under law to be publicly disclosed or (iii) the Company is engaged in a program for the purchase of any shares of Company Common Stock, unless such period repurchase program and the requested registration may be extended proceed concurrently pursuant to this Section 3.12(a)(ii)(B)an exemption from Rule 10b-6 under the Exchange Act; provided, that the Company may so suspend sales with respect to any one Demand Registration twice, but no more than twice, in any twelvemonth period. The time Company shall provide written notice to the Major Holders of the beginning and end of each Delay Period and the Major Holders shall cease all disposition efforts with respect to Registrable Shares held by them immediately upon receipt of notice of the beginning of any Delay Period. The period for which the Company is required to maintain the effectiveness of any Demand the Registration Statement shall be extended by the aggregate number of days of all suspension periods Delay Periods. Such period, including the extension thereof required by the preceding sentence, is hereafter referred to as the "Effectiveness Period."
(d ) In the case of a proposed offering pursuant to Section 3.12(d) occurring with respect to a Demand Registration, the Company may, in its sole discretion, include shares of Company Common Stock in such Demand Registration Statement.
(Cwhether for the account of the Company or otherwise, including without limitation shares of Company Common Stock held by security holders, if any, who have piggyback registration rights with respect thereto) The on the same terms and conditions as the Registrable Shares. Notwithstanding the foregoing, if the Company or, in case of any underwritten public offering, the managing underwriter or underwriters participating in such offering conclude that the total amount of shares of Company Common Stock requested to be included in such Demand Registration exceeds the amount which can be sold without materially and adversely delaying or affecting the success of the offering, then the amount of securities to be offered for the account of all holders other than the Company and the Major Holders shall be reduced (to zero if necessary) pro rata on the basis of the number of shares of Company Common Stock requested to be registered by each such Holder. If, after such cut back, the Company or such underwriter concludes that the total amount of securities to be included in such Demand Registration still materially and adversely affects the success of such offering, then the amount of securities to be offered for the account of the Company shall be entitled reduced (to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(dzero if necessary).
(De ) For If at any time the avoidance Major Holders of doubttwo-thirds of the Registrable Shares which were requested to be included pursuant to Section 2(a) shall, by written notice to the Company, request the Registration Statement not be declared effective or otherwise request a termination or withdrawal of the Registration Statement, and no Shares included in such Registration Statement have been sold pursuant thereto, then provided such requesting Major Holders reimburse the Company for its out of picket costs incurred in connection with complying with the request to register such Shares, the rights provided pursuant to this Section 3.12(a)(iiCompany shall terminate such registration statement and the Company's obligation under paragraph 2(a) shall continue as though such request to file a Registration Statement thereunder shall not be exercisable until have been made; provided, that the Effectiveness Deadlineholders may not give a Demand Notice within six months of the date the Company terminates or withdraws such Registration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Paracelsus Healthcare Corp)
Demand Registration. At any time after the date that is eighteen (A18) The Investor months following the Closing Date, and until the Registrable Securities may be sold pursuant to Rule 144 without volume limitation, Holders holding a majority in interest of the Registrable Securities shall have the rightright to demand, by written notice (the “Demand Notice”) given to the Company, to request, at any time and from time to time during such periods when a Shelf Registration Statement or Shelf Registration Statements covering all of the Investor’s Registrable Securities is or are not existing and effectivein writing, that the Company register, under and in accordance file with the provisions of Commission a Registration Statement covering the Securities Act, all or any portion resale of the Registrable Securities designated by the Investorthat are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Upon receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)such written demand, the Company shall promptly prepare, and, on or prior to ninety (and in any event within thirty (3090) days of from the date on which of receipt of such written demand (the Company receives such Demand Notice) “Filing Deadline”), file with the SEC, and Commission a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall thereafter (i) use its best efforts to cause the Registration Statement to be declared effective as promptly as practicable, under the Securities Act not later than sixty (60) days (the “Effectiveness Deadline”) after such filing (including filing with the Commission a registration statement on the appropriate form request for the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering Registrable Securities acceleration of effectiveness in accordance with Rule 461 promulgated under the intended method Securities Act within five (5) Business Days of the date that the Company is notified (orally or methods in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or not be subject to further review), provided, however, if the Registration Statement is being “reviewed” by the Commission then the Effectiveness Deadline shall be 120 days from the Filing Deadline and (ii) keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of distribution (x) the date when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which all Registrable Securities may be by an underwritten offeringsold, pursuant to Rule 144 without restriction (the “Effectiveness Period”). Upon the initial filing thereof and upon the filing of any pre-effective amendment thereto, the Registration Statement shall cover all of the Registrable Securities. Notwithstanding anything to the contrary herein, if the Commission informs the Company that it will not allow the Registration Statement to cover at least 100% of the Registrable Securities, then the Registration Statement shall cover the highest percentage of such Registrable Securities that the Commission will allow. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the total Registrable Securities. In the event that the Registration Statement (containing such number of Registrable Securities specified as is permitted by the Holders in such Demand Notice Commission) is not declared effective by the Effectiveness Deadline (a the “Demand Registration StatementEvent Date”). If , then, in addition to any other rights the Investor registering Registrable Securities intends to distribute any Registrable Securities by means of an underwritten offeringHolders may have hereunder or under applicable law, it shall promptly so advise the Company and the Company shall take all reasonable steps pay to facilitate such distribution, including Purchaser on each monthly anniversary of the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to Event Date (if the Investor registering Registrable Securities in such underwritten offering. Any Demand Registration Statement mayhas not been declared effective) until the Registration Statement has been declared effective an amount in cash or in shares of Common Stock, at or a combination thereof, as partial liquidated damages and not as a penalty, equal to 0.5% of $4,000,000, provided, however, the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if available.
(B) The Company shall use reasonable best efforts to keep each Demand Registration Statement filed not pay more than $150,000 pursuant to this Section 3.12(a)(iiSection. The price at which shares of Common Stock issuable in lieu of cash hereunder shall be equal to the lesser of (x) continuously effective and usable for the resale 85% of the Registrable Securities covered thereby for a period average of one hundred eighty the 5 consecutive VWAPs immediately prior to the applicable Event Date, or (180y) days from 85% of the average of the 5 consecutive VWAPs immediately prior to the date on which such damages are due. Subject to the SEC declares such Demand Registration Statement effectiveterms and conditions herein, as such period may be extended pursuant the decision whether to this Section 3.12(a)(ii)(B). The time period for which the Company is required to maintain the effectiveness pay partial liquidated damages hereunder in shares of any Demand Registration Statement Common Stock or cash shall be extended by at the aggregate number discretion of days of all suspension periods pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statementthe Company.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) shall not be exercisable until the Effectiveness Deadline.
Appears in 1 contract
Sources: Investor Rights Agreement (DecisionPoint Systems, Inc.)
Demand Registration. (Aa) The Investor shall have the right, by written notice (the “Demand Notice”) given to the Company, to request, at At any time and from time when the Company is eligible to time during such periods when a Shelf register the Registrable Securities for resale by the investors on an appropriate Registration Statement or Shelf Registration Statements covering all with the SEC, Investors holding at least 35% of the Investor’s then issued Registrable Securities is or are not existing and effective, may request that the Company register, under and in accordance with the provisions of the Securities Act, register some or all or any portion of the Registrable Securities designated pursuant a Registration Statement by submitting a Filing Notice with the InvestorCompany (each a “Demand Registration”). Upon After receipt of a Demand Notice from the Investor pursuant to this Section 3.12(a)(ii)each Filing Notice, the Company shall promptly (prepare and in any event within thirty (30) days of the date on which the Company receives such Demand Notice) file with the SEC, and on or before the Filing Date, a Registration Statement covering the resale of all Registrable Securities requested to be included in such Demand Registration or such maximum portion of such Registrable Securities as permitted by SEC Guidance (provided that, the Company shall thereafter use its best reasonable commercial efforts to cause to be declared effective as promptly as practicable, a registration statement on the appropriate form for obtain the registration and sale as shall be selected by the Company and as shall be reasonably acceptable to the Investor registering of all such Registrable Securities in accordance with the intended method SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09) that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on the appropriate form under the Securities Act and shall contain (unless otherwise directed by at least a majority in interest of the Investors) substantially the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its reasonable commercial efforts to cause a Registration Statement filed hereunder to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof, but in any event prior to the applicable Effectiveness Date, and shall use its reasonable commercial efforts to keep such Registration Statement current and continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or methods pursuant to Rule 144, or (ii) in the opinion of distribution counsel to the Investors, (which A) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and (B) (I) may be sold without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 or (II) the Company is in compliance with the current public information requirement under Rule 144 (the “Effectiveness Period”). Such Registration Statement (including any amendments or supplements thereto and prospectuses contained therein), except for information provided by an underwritten offeringInvestor or any transferee of an Investor, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. New York City time on a Trading Day. The Company shall immediately notify the Investors via facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the SEC, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. New York City time on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the SEC as required by Rule 424. Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement (and notwithstanding that the Company used its reasonable commercial efforts to obtain the registration of all or a greater portion of Registrable Securities), 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 first be reduced by 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 Registrable Securities specified unregistered Warrant Shares held by the Holders in such Demand Notice (a “Demand Registration Statement”Holders). If In the Investor registering Registrable Securities intends to distribute any Registrable Securities by means event of an underwritten offeringa cutback hereunder, it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 3.12(c). The managing underwriters in any such distribution shall be acceptable to give the Investor registering Registrable Securities in at least five (5) Trading Days prior written notice along with the calculations as to such underwritten offering. Any Demand Registration Statement may, at the request of the Holders submitting the Demand Notice, be a “shelf” registration pursuant to Rule 415, if availableInvestor’s allotment.
(Bb) The Company shall use reasonable best efforts not be obligated to keep each Demand Registration Statement filed effect, or to take any action to effect, any registration pursuant to this Section 3.12(a)(ii2(a) continuously effective and usable for (i) during the resale period that is ninety (90) days before the Company’s good faith estimate of the Registrable Securities covered thereby for date of filing of, and ending on a period of one date that is one-hundred eighty (180) days from after the effective date on which the SEC declares such Demand Registration Statement effectiveof, as such period may be extended pursuant to this Section 3.12(a)(ii)(B). The time period for which a Company-initiated registration, provided that the Company is required actively employing its good faith and commercially reasonable efforts to maintain cause such registration statement to become effective; or (ii) after the effectiveness of any Demand Registration Statement shall be extended by the aggregate number of days of all suspension periods Company has effected four registrations pursuant to Section 3.12(d) occurring with respect to such Demand Registration Statement.
(C) The Company shall be entitled to suspend the use of any effective Registration Statement under this Section 3.12(a)(ii) under the circumstances set forth in Section 3.12(d2(a).
(D) For the avoidance of doubt, the rights provided pursuant to this Section 3.12(a)(ii) . A registration shall not be exercisable counted as “effected” for purposes of this Section 2(b) until such time as the Effectiveness Deadlineapplicable Registration Statement has been declared effective by the SEC.
Appears in 1 contract