Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3. (b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3. (c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration. (d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 3 contracts
Sources: Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp)
Demand Registration. (a) Form S-1 Demand. If at any time after one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) a majority of the Registrable Securities then outstanding Then Outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) all or any portion of the their Registrable Securities then outstanding in which if the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million15,000,000, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders Holders, and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections Section 2.1(c) and Section 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten twenty percent (1020%) of the Registrable Securities then outstanding Then Outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million1,000,000, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders Holders; and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections Section 2.1(c) and Section 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effectivebe filed and it is therefore necessary to defer the filing of such registration statement, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice once in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days)period; and provided further further, that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such ninety (90)-day period other than an pursuant to any Excluded RegistrationRegistrations.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration or file any registration statement pursuant to Section 2.1(a) (i) during the period commencing on the date that that is sixty ninety (6090) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) ); or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). .
(e) The Company shall not be obligated to effect, or to take any action to effect, any registration or file any registration statement pursuant to Section 2.1(b) (Ai) during the period commencing on the date that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or effective; (Bii) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (1212)-month period immediately preceding the date of such request; or (iii) month if the Company has effected a registration pursuant to Section 2.1(b) within the six (6)-month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d2.1(e) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)2.1(e) except as provided in Section 2.6.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Tempus AI, Inc.), Investors’ Rights Agreement (Tempus Labs, Inc.), Investors’ Rights Agreement (Tempus Labs, Inc.)
Demand Registration. (a) Form S-1 Demand. If Subject to the provisions of Section 5.2(d) and Section 5.2(e), if at any time one hundred eighty after the earlier of four years after the Initial Closing (180as defined in the Series E Stock Purchase Agreement) or 180 days after the effective date of the registration statement for the IPOCompany first consummates a Public Offering on Form S-1 or Form SB-2, or any successor forms, the Company receives shall receive a written request therefor from Holders the record holder or holders of at least thirty-five percent (35%) an aggregate of more than 33% of the Registrable Securities then outstanding that (the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price“Initiating Holders”), net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders prepare and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering such number of Registrable Securities as are the subject of such request, provided that such Registrable Securities have an anticipated net aggregate offering price in excess of five million dollars ($5,000,000), and shall use its best efforts to cause such registration statement to become effective. Upon the receipt of a registration request meeting the requirements of this Section 5.2(a), the Company shall promptly give written notice to all other record holders of Registrable Securities that such registration is to be effected. The Company shall include in such registration statement such additional Registrable Securities as such other record holders request within thirty (30) days after the date of the Company’s written notice to them. If (i) the holders of a majority of the Registrable Securities for which registration has been requested pursuant to this Section 5.2(a) and the holders of a majority of the shares of Registrable Securities held by the Initiating Holders requested determine for any reason not to proceed with the registration at any time before the related registration statement has been declared effective by the Commission, (ii) such registration statement, if theretofore filed with the Commission, is withdrawn and (iii) the holders of the Registrable Securities subject to such registration statement agree to bear their own Registration Expenses incurred in connection therewith and to reimburse the Company for the Registration Expenses incurred by it in such connection or if such registration statement, if theretofore filed with the Commission, is withdrawn at the initiative of the Company, then the holders of the Registrable Securities shall not be deemed to have exercised one of their two demand registration rights pursuant to this Section 5.2(a); provided, however, that the holders of Registrable Securities requesting registration shall not be required to reimburse the Company for the Registration Expenses incurred by it in connection with a registration withdrawn at the request of such holders, and the Company shall not be deemed to have prepared, filed or caused to be registered and any additional Registrable Securities requested to be included effective the registration within the meaning of Section 5.2(c), if the holders requesting withdrawal of the registration do so in such registration by any other Holders, as specified by notice given by each such Holder to good faith because of material adverse information regarding the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3which they became aware after requesting registration.
(b) Form S-3 Demand. If at any time when it is eligible to use At the request of the holders of a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) majority of the Registrable Securities then outstanding that to be registered, the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities method of such Holders having an anticipated aggregate offering price, net disposition of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in a registration under Section 5.2(a) shall be an underwritten offering. The managing underwriter of any such offering shall be selected by the holders of a majority of the Registrable Securities for which registration by any other Holders, as specified by notice given by each such Holder has been requested and shall be reasonably acceptable to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that . If in the good faith judgment of the Board it managing underwriter of the Public Offering, the inclusion of all of the Registrable Securities the registration of which has been requested would interfere with their successful marketing, the number of Registrable Securities to be materially detrimental included in the offering shall be reduced, pro rata, among the requesting holders thereof in proportion to the number of Registrable Securities included in their respective requests for registration. Neither the Company and its stockholders for such registration statement to either become effective or remain effective, then nor any holder of securities (other than Registrable Securities) of the Company shall have the right to defer taking action with respect include any securities in a registration statement to be filed as part of a demand registration pursuant to this Section 5.2(a) or Section 5.4 unless (i) such securities are of the same class as the Registrable Securities to be included in the registration (or another class of securities to be sold by the Company for its own account), (ii) the holders of a majority of the Registrable Securities to be registered consent to such filinginclusion in writing, (iii) if such registration is an underwritten offering, the Company and such other holders agree in writing to sell their securities on the same terms and conditions as apply to the Registrable Securities being sold pursuant to the request for registration and (iv) the inclusion of such securities will not, in the judgment of any time periods managing underwriter of the Offering, interfere with respect to filing or effectiveness thereof the successful marketing of the Registrable Securities.
(c) The Company shall be tolled correspondinglyobligated to prepare, file and cause to be effective only two registration statements pursuant to Section 5.2(a).
(d) Notwithstanding the foregoing, the Company may delay initiating the preparation and filing of any registration statement requested pursuant to Section 5.2(a) for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to exceed one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) days if (i) in the good faith judgment of the Company’s Board of Directors effecting the registration would substantially interfere with any material transaction being considered at the time of receipt of the request from the Initiating Holders or (ii) a request for registration is received during the period that is starting with the date sixty (60) days before prior to the Company’s good faith estimate of the date of the filing of, and ending on a date that is one hundred eighty (180) days after following the effective date of, a Company-initiated registrationregistration as to which holders of Registrable Securities may include Registrable Securities pursuant to Section 5.3 below, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective or and provided further that such right under subsection (Bi) if to delay a request shall be exercised by the Company has effected two registrations pursuant not more than once in any 12-month period.
(e) Notwithstanding anything to the contrary contained herein, and without limitation as to the rights of the Company to include in a demand registration securities for sale for its own account as provided in Section 2.1(b5.2(a), at any time within thirty (30) within days after receiving a demand for registration, the twelve (12) month period immediately preceding Company may elect to effect an underwritten primary registration in lieu of the date requested registration. If the Company so elects, the Company shall give prompt written notice to all holders of Registrable Securities of its intention to effect such requesta registration and shall afford such holders the rights contained in Section 5.3 with respect to “piggyback” registrations. A In such event, the demand for registration shall not be counted as “effected” for purposes deemed to have been withdrawn without reducing the number of this demand registrations remaining available under Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d5.2(c).
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Salient Surgical Technologies, Inc.), Investors’ Rights Agreement (Salient Surgical Technologies, Inc.), Investors’ Rights Agreement (Salient Surgical Technologies, Inc.)
Demand Registration. (a) Form S-1 Demand. If the Company shall receive, at any time after the earlier to occur of (i) the date one hundred eighty (180) days after the effective date initial public offering of any series or class of the registration statement for Company’s securities under the Act (the “IPO”), and (ii) the Company receives a request fourth anniversary of the date hereof, from Preferred Stock Holders of holding at least thirty-five fifty percent (3550%) of the Outstanding Registrable Securities then outstanding held by Preferred Stock Holders, a written notice requesting that the Company file effect a Form S-1 registration statement under the Act with respect to at least thirty-five percent (35%) all or a part of the Outstanding Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 millionheld by such Preferred Stock Holders, then the Company shall shall:
(i) within ten (10) days after of the date receipt thereof, give written notice of such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and Preferred Stock Holders; and
(ii) effect as soon as practicable, and in any event within sixty ninety (6090) days after of the date receipt of such request is given by request, the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering of all Registrable Securities that which the Initiating Preferred Stock Holders requested request to be registered and any additional Registrable Securities requested to be included in such registration by any other Holdersregistered, as specified by notice given by each such Holder to the Company within twenty thirty (2030) days of the date mailing of the Demand Notice is given, and notice sent by the Company in each caseaccordance with Section 3.2(a)(i), subject to the limitations of Sections 2.1(c) and 2.3Section 3.2(b).
(b) Form S-3 Demand. If at any time when it is eligible the Preferred Stock Holders initiating the registration request hereunder (the “Initiating Holders”) intend to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of distribute the Registrable Securities then outstanding that covered by their request by means of an underwriting, they shall so advise the Company file as a Form S-3 registration statement with respect part of their request made pursuant to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then Section 3.2(a) and the Company shall include such information in the written notice referred to in Section 3.2(a)(i). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Preferred Stock Holder to include Registrable Securities in such registration shall be conditioned upon such Preferred Stock Holder’s participation in such underwriting and the inclusion of such Preferred Stock Holder’s Registrable Securities in the underwriting (i) within ten (10) days after the date such request is given, give unless otherwise mutually agreed by a Demand Notice to all Holders other than majority in interest of the Initiating Holders and such Preferred Stock Holder) to the extent provided herein. All Preferred Stock Holders proposing to distribute their securities through such underwriting shall (iitogether with the Company as provided in Section 3.5(e)) as soon as practicableenter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Preferred Stock Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in any event within forty-five (45) days after the date such request is given by underwriting shall be allocated among all Preferred Stock Holders thereof, including the Initiating Holders, file a Form S-3 registration statement under in proportion (as nearly as practicable) to the Securities Act covering all amount of Registrable Securities requested of the Company owned by each Preferred Stock Holder; provided, however, that the number of shares of Registrable Securities to be included in such registration by any underwriting shall not be reduced unless all other Holders, as specified by notice given by each such Holder to securities are first entirely excluded from the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3underwriting.
(c) Notwithstanding the foregoing obligationsforegoing, if the Company furnishes shall furnish to Preferred Stock Holders requesting a registration pursuant to this Section 2.1 3.2 a certificate signed by the Company’s chief executive officer President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company and its stockholders for such a registration statement to either become effective or remain effectivebe filed and it is therefore essential to defer the filing of such registration statement, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that days after receipt of the Company shall not register any securities or instruments for its own account or that request of any other stockholder during such period other than an Excluded Registrationthe Initiating Holders.
(d) The In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) 3.2 after the Company has effected two (2) registrations on Form S-l pursuant to this Section 2.1(a) 3.2 and such registration statements have been declared or (iii) if ordered effective and the Initiating Holders propose to dispose of shares sales of Registrable Securities that may under such registration statements have closed.
(e) No incidental right under this Section 3.2 shall be immediately registered on Form S-3 pursuant construed to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, limit any registration pursuant to required under Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective 3.3 or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)3.4 herein.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Rusnano), Investors’ Rights Agreement (BIND Therapeutics, Inc), Investors’ Rights Agreement (BIND Therapeutics, Inc)
Demand Registration. (a) Form S-1 Demand. If If, at any time one hundred eighty following the date on which the Company shall have registered any of its securities (180including registration of shares held by persons other than "Holders" hereunder) under the Exchange Act (unless such registration is in connection with a firmly underwritten initial public offering of the Company's Common Stock (an "IPO"), then, at any time more than 180 days after the effective date effectiveness of such IPO), (x) the Holders of Registrable Securities representing a majority of such Registrable Securities and (y) the holders of a majority of the shares of Series 3 Preferred Stock, each shall have the right (which right is in addition to the registration rights under Sections 2.3 and 2.4 hereof), exercisable by written notice to the Company (the "Demand Notice"), to have the Company prepare and file with the SEC, in the case of the Holders of Registrable Securities representing a majority of such Registrable Securities on two (2) occasions (provided that two or more registration statements filed in response to one Demand Notice shall be counted as one occasion) and in the case of holders of a majority of the shares of Series 3 Preferred Stock on one (1) occasion (provided that two or more registration statements filed in response to one Demand Notice shall be counted as one occasion), a registration statement and such other documents, including a prospectus, as may be necessary in the opinion of both counsel for the IPOCompany and Holders' Counsel, in order to comply with the provisions of the Securities Act, so as to permit a public offering and sale of their respective Registrable Securities (which may be an underwritten offering if so demanded) and cause such registration statement to be declared effective by the SEC within 120 days after such filing. The Company receives shall give written notice (a "Registration Notice") of any registration request from under Section 2.2(a) to all other Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that within ten (10) days from the date of receipt of the Demand Notice. The Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) will, as expeditiously as reasonably possible, register the number of shares specified in the Demand Notice and in notices received from any other Holders of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then who notify the Company shall (i) within ten (10) days after receiving the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities ; provided that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect delay or suspend the effectiveness of such registration request: (i) for such reasonable period of time until the Company receives or prepares financial statements for the fiscal period most recently ended prior to such filingwritten request, and if necessary under applicable securities laws to avoid the use of stale financial statements, (ii) if the Company would be required to divulge in such registration statement the existence of any time periods with respect fact relating to a material business situation, transaction or negotiation not otherwise required to be disclosed, or (iii) if the Board of Directors of the Company shall determine in good faith that the registration to be effected would not be in the best interest of the Company, in each such case the Company shall have the right to delay such filing or effectiveness thereof shall be tolled correspondingly, for a period of not more no longer than sixty ninety (6090) days after the request of the Initiating Holders is given; (provided, however, that the Company may shall not invoke utilize this right more than twice once in any twelve (12) month period period).
(which may be for consecutive sixty (60b) day periods aggregating Notwithstanding anything to one hundred twenty (120) days); and provided further that the contrary contained in this Agreement, the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated required to effect, or to take any action to effect, any effect a registration pursuant to this Section 2.1(a) 2.2 within 180 days following the effective date of (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that registration statement filed by the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; accordance with Sections 2.2 or 2.3 or (ii) after a registration statement for the account of another holder of securities of the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose were afforded the opportunity to dispose of shares of include the Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 3 contracts
Sources: Investor Rights Agreement (Local Matters Inc.), Investor Rights Agreement (Local Matters Inc.), Investor Rights Agreement (Local Matters Inc.)
Demand Registration. (a) Form S-1 Demand. If (i) Provided that the Company does not have the Registration Statement filed pursuant to Section 2 effective and usable to such Holder or group of Holders requesting a Demand Registration under this Section, at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file becomes a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement registrant under the Securities Act covering all Registrable Securities that Exchange Act, any Holder or group of Holders holding, in the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holdersaggregate, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) or more of the Registrable Securities then issued and outstanding that immediately following the effective date of the Plan (the “Initial Outstanding Amount”), shall have the right, by written notice given to the Company file (a Form S-3 registration statement with respect “Demand Notice”), to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then request the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, register under and in any event within forty-five (45) days after accordance with the date such request is given by the Initiating Holders, file a Form S-3 registration statement under provisions of the Securities Act covering all or any portion of the Registrable Securities designated by such Holder(s); provided, however, that (x) the estimated fair market value of the Registrable Securities requested to be included in such registration registered is equal to at least $10 million (or the entire amount of Registrable Securities then owned by any other Holdersthe Holders if the estimated fair market value of the remaining Registrable Securities is less than $10 million), as specified by notice given by each such Holder and (y) prior to the time the Company within twenty (20) days is eligible to use Form S-3 for the registration of Registrable Securities for resale, such Holder(s), in the date the aggregate, shall only be entitled to one Demand Notice is given, and in each case, subject Registration per calendar year pursuant to the limitations provisions of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either 3(a)(i) unless any Demand Registration does not become effective or remain effectiveis not maintained in effect for the respective periods set forth in Section 3(c), then in which case the relevant Holder(s) will be entitled to an additional Demand Registration pursuant hereto. Following the time that the Company becomes eligible for use of Form S-3 (or any successor form), any Holder or group of Holders holding, in the aggregate, ten percent (10%) or more of the Initial Outstanding Amount, shall have the right to defer taking action request the Company to register under and in accordance with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request provisions of the Initiating Holders is givenSecurities Act all or any portion of the Registrable Securities designated by such Holder(s); provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate estimated fair market value of the date of filing of, and ending on a date that Registrable Securities requested to be registered is one hundred eighty at least $10 million (180) days after or the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares entire amount of Registrable Securities then owned by the Holders if the estimated fair market value of the remaining Registrable Securities is less than $10 million), provided, however, that may there shall be immediately registered on Form S-3 no more than five (5) Demand Registrations pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Agreement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Howard Hughes Corp), Registration Rights Agreement (Howard Hughes Corp), Registration Rights Agreement
Demand Registration. (a) Form S-1 Demand. If at Subject to the conditions of this Section 2.2, if the Company shall receive a written request from (i) the Holders holding not less than thirty percent (30%) of the shares of Common Stock issued or issuable upon conversion of the Series A Preferred (other than Landmark Registrable Securities) then outstanding, (ii) the Holders holding not less than fifty percent (50%) of the Landmark Registrable Securities, (iii) the Holders holding not less than fifty percent (50%) of the shares of Common Stock issued or issuable upon conversion of the Series B Preferred (other than Landmark Registrable Securities) then outstanding or (iv) the Holders holding not less than fifty percent (50%) of the shares of Common Stock issued or issuable upon conversion of the Series B-1 Preferred (other than Landmark Registrable Securities) then outstanding (each, a “Demand Registration Request”), that the Company file a registration statement with respect to all or part of the Registrable Securities under the Securities Act, then the Company shall, within fifteen (15) calendar days of the receipt thereof, give written notice of such request to all Holders, and, subject to the limitations of this Section 2.2, use its commercially reasonable efforts to effect, as expeditiously as reasonably possible (and in any time event within ninety (90) days of the date such request is given or such longer period as results from a delay for any reason from the SEC) the registration under the Securities Act of all Registrable Securities that all Holders request to be registered pursuant to and in accordance with this Agreement.
(b) The Company shall not be required to effect or take any action to effect a registration pursuant to this Section 2.2:
(i) prior to one hundred eighty (180) calendar days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent Initial Public Offering;
(35%ii) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement (A) solely with respect to at least thirty-five percent (35%Section 2.2(a)(i) of the Registrable Securities then outstanding in which the anticipated aggregate offering priceabove, net of Selling Expenses, would exceed $10 million, then after the Company shall has effected two (i2) within ten registrations pursuant thereto, (10B) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement solely with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering priceSection 2.2(a)(ii) above, net of Selling Expenses, of at least $5 million, then after the Company shall has effected two (i2) within ten registrations pursuant thereto, (10C) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action solely with respect to such filingSection 2.2(a)(iii) above, after the Company has effected one (1) registration pursuant thereto, and any time periods (D) solely with respect to filing Section 2.2(a)(iv) above, after the Company has effected one (1) registration pursuant thereto, and such registrations have been declared or effectiveness thereof shall be tolled correspondinglyordered effective (which, for a period the avoidance of not more than sixty (60) days after the request of the Initiating Holders is given; provideddoubt, however, shall mean that the Company may not invoke this right more than twice in any twelve (12) month period (which may be registrations shall have been continuously effective for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date ofcalendar days, a Company-initiated registrationor until all Registrable Securities covered thereby have been sold, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or if earlier);
(iii) if the Initiating Holders specified in Section 2.2(a) propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated 2.4 below;
(iv) if the Holders specified in Section 2.2(a) propose to effectsell Registrable Securities, or to take any action to effect, any registration pursuant to Section 2.1(b) the aggregate proceeds of which are less than $10,000,000; or
(Av) during the period that is thirty starting with the date sixty (3060) days before prior to the Company’s good faith estimate of the date of filing ofof a registration under the Securities Act for the purposes of a public offering of securities of the Company (including but not limited to, and ending registration statements related to follow-on a date offerings of securities of the Company, but excluding Special Registration Statements); provided that is ninety the Company shall, within thirty (9030) days after of its receipt of a Demand Registration Request, provide written notice to all Holders specified in Section 2.2(a) of its intent to file a registration statement for a public offering of securities of the effective date of, a Company-initiated registration, Company within sixty (60) days; provided further that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective or effective; and provided further that in the case of a public offering other than an Initial Public Offering that the Initiating Holders (Bas defined below) are permitted to register such shares in such registration as requested to be registered pursuant to Section 2.3 hereof; or
(vi) if the Company has effected two registrations pursuant shall furnish to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand requesting a registration statement pursuant to this Section 2.62.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which case event the Company shall have the right to defer such withdrawn registration statement filing for a period of not more than sixty (60) days after receipt of the request of the initiating Holders; provided that such right to delay a request shall be counted as “effected” for purposes of this Section 2.1(d).exercised by the Company not more than twice in any twelve month period;
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Tpi Composites, Inc), Investor Rights Agreement (Tpi Composites, Inc)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty Subject to the conditions of this Section 2.1, if the Company shall receive a written request from the Required Holders (180) days after the effective date for purposes of the registration statement for the IPOthis Section 2.1, the Company receives a request from Holders of at least thirty-five percent (35%“Initiating Holders”) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to under the Securities Act covering the registration of at least thirty-five twenty percent (3520%) of shares of the Common Stock issuable or issued upon conversion of the Preferred Stock (the “Preferred Stock Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 millionSecurities”), then the Company shall shall, within fifteen (i) within ten (1015) days after the date receipt thereof, give written notice of such request is given, give notice thereof (the “Demand Notice”) to all Holders other than Holders, and subject to the Initiating Holders and (ii) limitations of this Section 2.1, shall, as soon expeditiously as practicable, possible and in any event within sixty (60) days after receipt of the date such request is given by from the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering of all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested that all other Holders request to be included in such registration by any other Holdersregistered, as specified by notice given by each such other Holder to the Company within twenty (20) days of after the date that the Demand Notice written notice by the Company referred to above is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to the Initiating Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board Company’s board of directors (the “Board”) it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty ninety (6090) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice once in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days)period; and provided further provided, further, that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such ninety (90) day period other than pursuant to a Special Registration Statement.
(c) If the Initiating Holders intend to distribute the Preferred Stock Registrable Securities covered by their request by means of an Excluded Registrationunderwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 or any request pursuant to Section 2.3 and the Company shall include such information in the written notice referred to in Section 2.1(a) or Section 2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company as provided in Section 2.5(e), enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.1 or Section 2.3, if the managing underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Preferred Stock Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Preferred Stock Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(d) The Company shall not be obligated required to effect, or to take any action to effect, any effect a registration pursuant to this Section 2.1(a) 2.1:
(i) during prior to the period that is sixty earlier of (60A) days before the Company’s good faith estimate third anniversary of the date of filing of, and ending on a date that is hereof or (B) one hundred eighty (180) days after following the effective date of, a Company-initiated registration, provided that of the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement pertaining to become effective; the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.1, and such registrations have been declared or ordered effective;
(iii) if within fifteen (15) days of receipt of a written request from the Initiating Holders pursuant to Section 2.1(a) or (iii) if ), the Company gives notice to each of the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on intention to file a date that is registration statement for its Initial Offering within ninety (90) days after receipt of such written request from the effective date of, a Company-initiated registrationInitiating Holders, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or during such period;
(Biv) if the Company has effected two registrations Initiating Holders propose to dispose of shares of Preferred Stock Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b2.3 below; or
(v) within in any particular jurisdiction in which the twelve (12) month period immediately preceding the date Company would be required to qualify to do business or to execute a general consent to service of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for process in effecting such registration, elect not qualification or compliance unless the Company is already qualified to pay the registration expenses therefordo business or subject to service of process, and forfeit their right to one demand registration statement pursuant to Section 2.6as applicable, in which case such withdrawn registration statement shall jurisdiction and except as may be counted as “effected” for purposes of this Section 2.1(d)required by the Securities Act.
Appears in 3 contracts
Sources: Investor Rights Agreement (Mirna Therapeutics, Inc.), Investor Rights Agreement (Mirna Therapeutics, Inc.), Investor Rights Agreement (Mirna Therapeutics, Inc.)
Demand Registration. 2.1 After the earlier of (ai) Form S-1 Demandthe first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time, Holders of at least fifty percent (50%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Registration Statement under this Section 2 more than once in any twelve (12) month period, more than twice after an IPO or more than three (3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the Company shall deliver written notice to all Holders that, pursuant to a Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to the Demand Notice may, within ten (10) days from receipt of the Company's notice, request the Company to include the Holder's Registrable Securities in the Registration Statement. If at the Holders that initiated a Demand Notice specify therein that they intend to distribute their Registrable Securities through an underwriter, then each Holder that requests inclusion in the Registration Statement must participate in such underwriting, and become party to any time required agreements, including, but not limited to, customary underwriting and indemnification agreements. The Company shall have the right to approve any underwriter, which approval shall not be unreasonably withheld. In the event that the underwriter limits the number of Registrable Securities to be included in the offering to fewer than the number that has been requested for Registration, then each Holder's Registrable Securities shall be included in the underwriting pro rata, based on the total number of Registrable Securities held by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following limitations: (i) the Company need not prepare or file a Registration Statement pursuant to a Demand Notice within one hundred eighty (180) days after the effective date of the registration statement for the IPO, any Registration Statement filed by the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then Holders party to the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and Notice could have included their Registrable Securities; (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days may delay the effectiveness of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other for a period of not more than the Initiating Holders and (ii) as soon as practicable, and six months after receipt of a Demand Notice in any event within forty12-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, month period if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer its president stating that in the good faith judgment of the Board Company's board of directors it would be materially detrimental to the Company for the Registration Statement to be effected at such time; and its stockholders for such registration statement to either become effective or remain effective, then (iii) the Company shall have the right need not prepare or file a Registration Statement pursuant to defer taking action a Demand Notice if it is then preparing a Registration Statement in connection with respect to such filingan underwritten public offering of Company securities, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that delay the Company shall not register any securities or instruments for its own account or that effectiveness of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is Demand Notice until one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Registration Statement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Telxon Corp), Subscription Agreement (Aironet Wireless Communications Inc), Registration Rights Agreement (Aironet Wireless Communications Inc)
Demand Registration. (a) Form S-1 Demand. If at At any time from the earlier of (i) six (6) months following the completion of an IPO or (ii) the third (3rd) anniversary of the date of this Agreement, if the Holders representing at least a majority of the Registrable Shares then outstanding (the “Initiating Holders”) shall state in writing that such Holders desire to sell Registrable Shares in the public securities markets and request the Company to effect the registration of Registrable Shares under the Securities Act, the Company shall promptly use its best efforts to effect the registration under the Securities Act of the Registrable Shares which the Company has been so requested to register by the Holders. For the avoidance of doubt, the Company shall not be required to register the sale or re-sale of any True-Up Shares or Conversion True-Up Shares in an IPO.
(b) Notwithstanding anything contained in this Section 2 to the contrary, the Company shall not be obligated to effect any registration under the Securities Act except in accordance with the following provisions:
(i) The Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two (2) long-form registration statements initiated pursuant to Section 2(a) (other than those on form S-3 as set forth in Section 4) at the Company’s expense; (B) more than two (2) long-form registration statements initiated pursuant to Section 2(a) at the Holders’ expense; (C) any demand registration statement pursuant to Section 2(a) with an anticipated aggregate offering price of less than $10,000,000; nor (D) any registration statement during any period in which any other registration statement (other than on Form S-8 promulgated under the Securities Act or any successor form thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior one hundred eighty (180) days after days.
(ii) The Company may delay the effective date filing or effectiveness of the any registration statement for the IPO, the Company receives a request from Holders period of at least thirty-five percent up to ninety (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (1090) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a for registration pursuant to this Section 2.1 2 if at the time of such request the Company furnishes to the Holders requesting such registration statement pursuant to this Section 2, a certificate signed by the Company’s chief executive officer Chief Executive Officer of the Company stating that (i) the Company is engaged, or has fixed plans to engage within thirty (30) days of the time of such request, in a firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares may include Registrable Shares pursuant to Section 3 or (ii) the Board has reasonably determined in its good faith judgment of the Board that it would be materially seriously detrimental to the Company and its stockholders for such registration statement to either become effective or remain effectivebe filed, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke only delay the filing or effectiveness of a registration statement pursuant to this right more than twice in any twelve (12Section 2(b) month period (which may be for consecutive sixty (60) day periods aggregating to a total of one hundred and twenty (120) days); and provided further that days after the Company shall not register any securities or instruments date of a request for its own account or that of any other stockholder during such period other than an Excluded Registrationregistration pursuant to this Section 2.
(diii) The Company shall not be obligated With respect to effect, or to take any action to effect, any registration pursuant to this Section 2.1(a) (i) during 2, the period Company shall give notice of such registration to all Holders that is sixty (60) are not Initiating Holders and the holders of all Other Shares that are entitled to registration rights and the Company may include in such registration any Primary Shares or Other Shares and shall include all Registrable Shares that Holders that are not Initiating Holders request to be registered within 20 days before of the mailing of the foregoing notice by the Company’s good faith estimate ; provided, however, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated Registrable Shares proposed to be included in such registration, provided that then the Company is actively employing number of Registrable Shares, Primary Shares and/or Other Shares proposed to be included in good faith commercially reasonable efforts to cause such registration statement shall be included in the following order:
(A) first, all the Registrable Shares that are issued or issuable upon conversion of the Series B Preferred Stock and any True-Up Shares (collectively, “Series B Registrable Shares”), subject to become effectivethe last sentence of Section 2(a), requested to be included in such registration (or, if necessary, such Series B Registrable Shares pro rata among the Holders thereof based upon the number of Series B Registrable Shares requested to be registered by each such Holder);
(B) second, all the Registrable Shares that are not Series B Registrable shares (“Non-Series B Registrable Shares”) requested to be included in such registration (or, if necessary, such Non-Series B Registrable Shares pro rata among the Holders thereof based upon the number of Non-Series B Registrable Shares requested to be registered by each such Holder);
(C) third, the Primary Shares; and
(iiD) after fourth, the Company has effected two registrations pursuant Other Shares that are entitled to Section 2.1(aregistration rights requested to be included in such registration (or, if necessary, such Other Shares pro rata among the holders thereof based upon the number of Other Shares requested to be registered by each such holder).
(iv) or (iii) if If the Initiating Holders propose to dispose so elect, the offering of shares of such Registrable Securities that may be immediately registered on Form S-3 Shares pursuant to a request made pursuant to Section 2.1(b)such registration shall be in the form of an underwritten offering. The Initiating Holders shall, at their option, select one or more nationally prominent firms of investment bankers reasonably acceptable to the Company to act as the lead managing underwriter or underwriters in connection with such offering. In such event, the right of any Person to include such Person’s Registrable Shares or Other Shares in such registration shall not be obligated conditioned upon such Person’s participation in such underwriting. All Holders proposing to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) distribute their securities through such underwriting shall (A) during the period that is thirty (30) days before together with the Company’s good faith estimate of ) enter into an underwriting agreement in customary form with the date of filing of, and ending on a date that is ninety (90underwriter(s) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request selected for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)underwriting.
Appears in 3 contracts
Sources: Registration Rights Agreement (Aspen Aerogels Inc), Registration Rights Agreement (Aspen Aerogels Inc), Registration Rights Agreement (Aspen Aerogels Inc)
Demand Registration. (a) Form S-1 Demand. If at any time after the earlier of (A) July 20, 2015 and (B) one hundred eighty (180) days after the effective date of the registration statement for the an IPO, the Company receives a request from Holders of at least thirty-five fifty percent (3550%) of the Registrable Securities then outstanding that the Company file effect a Form S-1 registration statement with respect to at least thirty-five ten percent (3510%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 millionoutstanding, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders Holders; and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(cSection 2.1(b) and 2.3Section 2.4.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty ninety (6090) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days)period; and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such ninety (90) day period other than pursuant to an Excluded Registration.
(dc) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.1(a) 2.1 (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two (2) registrations pursuant to under this Section 2.1(a) 2.1; or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request2.3. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) 2.1 until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.62.7, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)2.1.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement, Investors’ Rights Agreement (Histogenics Corp)
Demand Registration. (ai) Form S-1 Demand. If A ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Holders may request (at any time one hundred eighty (180) days after the effective date Company completes an IPO) by written notice delivered to the Company that the Company register under the Securities Act all or any portion of the registration statement for Registrable Securities then held by such ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Holders (the IPO“Requesting ▇▇▇▇▇▇ Holders”), representing in the Company receives a request from Holders of at least thirty-five aggregate not less than fifty percent (3550%) of the Registrable Securities then outstanding that held by the ▇▇▇▇▇▇ Holders, for sale in the manner specified in such notice (including, but not limited to, an underwritten public offering). In each such case, such notice shall specify the number of Registrable Securities for which registration is requested, the proposed manner of disposition of such securities, and the minimum price per share at which the Requesting ▇▇▇▇▇▇ Holders would be willing to sell such securities in an underwritten offering. The Company file a Form S-1 shall, within five (5) Business Days after its receipt of any Requesting ▇▇▇▇▇▇ Holders’ notice under this Section 2(a)(i), give written notice of such request to all other ▇▇▇▇▇▇ Holders and afford them the opportunity of including in the requested registration statement with respect to at least thirty-five percent (35%) such of the their Registrable Securities then outstanding as they shall specify in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by written notice given by each such Holder to the Company within twenty (20) days after their receipt of the Company’s notice. Within ten (10) Business Days after the expiration of such twenty (20) day period, the Company shall notify all ▇▇▇▇▇▇ Holders requesting registration of (A) the aggregate number of Registrable Securities proposed to be registered by all ▇▇▇▇▇▇ Holders, (B) the proposed filing date of the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, and (C) such other information concerning the Company receives a request from offering as any Holder may have reasonably requested. If the ▇▇▇▇▇▇ Holders of at least ten percent (10%) a majority in aggregate amount of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration offering shall have requested that such offering be underwritten, the managing underwriter for such offering shall be chosen by the ▇▇▇▇▇▇ Holders of a majority in aggregate amount of the Registrable Securities being registered, with the consent of the Company, which consent shall not be unreasonably withheld, not less than thirty (30) days prior to the proposed filing date stated in the Company’s notice, and the Company shall thereupon promptly notify such ▇▇▇▇▇▇ Holders as to the identity of the managing underwriter, if any, for the offering. On or before the 30th day prior to such anticipated filing date, any other Holders, as specified by ▇▇▇▇▇▇ ▇▇▇▇▇▇ may give written notice given by each such Holder to the Company within twenty and the managing underwriter specifying either that (20A) days Registrable Securities of such ▇▇▇▇▇▇ ▇▇▇▇▇▇ are to be included in the underwriting, on the same terms and conditions as the securities otherwise being sold through the underwriters under such registration or (B) such Registrable Securities are to be registered pursuant to such registration statement and sold in the open market without any underwriting, on terms and conditions comparable to those normally applicable to offerings in reasonably similar circumstances, regardless of the date method of disposition originally specified in Holder’s request for registration; provided that, notwithstanding anything to the Demand Notice is givencontrary contained herein, and in each caseto the extent that any ▇▇▇▇▇▇ ▇▇▇▇▇▇ sells Registrable Securities off of a shelf registration statement on Form S-3 (or equivalent registration statement form) other than pursuant to an underwritten offering, such sales by the ▇▇▇▇▇▇ Holders collectively shall (x) be subject to the limitations terms of Sections 2.1(cany lock-up agreement or similar agreement entered into by such ▇▇▇▇▇▇ ▇▇▇▇▇▇ with the Company and (y) be strictly limited in any 30 consecutive day period to the sale of the number of shares (inclusive of the sale of any unlegended shares during the applicable periods by such ▇▇▇▇▇▇ ▇▇▇▇▇▇) equal to 1% of the shares of the Company outstanding as shown by the most recent report or statement published by the Company (with such limitation applying to transfers by the ▇▇▇▇▇▇ Holders and 2.3.
(c) Notwithstanding the foregoing obligationstheir transferees collectively); provided further, that, if the Company furnishes to Holders requesting has filed a shelf registration statement pursuant to this Section 2.1 2(a)(iii) hereof in response to receiving a certificate signed by request from the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental ▇▇▇▇▇▇ Holders to file such shelf registration statement at least 20 days prior to the Company 181st day after the IPO, and its stockholders for such registration statement to either has not become effective or remain effectivewithin 45 days of the filing of such shelf registration statement, then the Company ▇▇▇▇▇▇ Holders shall have the right to defer taking action with respect sell additional shares off of such shelf registration statement (without regard to the above 1% limit) equal to (x) 1% of the outstanding shares of common stock of the Company, multiplied by (y) a fraction, the numerator of which is the number of days beyond 45 days in which it took for such filingeffectiveness to occur, and any time periods with respect the denominator of which is 30, minus (z) the number of unlegended shares that were available to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after sold by the request of the Initiating ▇▇▇▇▇▇ Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder their transferees during such period other than an Excluded Registration.
(d) The beyond 45 days. Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to effectfile a shelf registration statement prior to the 181st day after the IPO at the request of the ▇▇▇▇▇▇ Holders (and in order for the Company to be obligated to file such shelf registration statement on such 181st day, or the ▇▇▇▇▇▇ Holders must have made the relevant request at least 20 days prior to take any action to effectsuch date), any sales by the ▇▇▇▇▇▇ Holders off of an effective shelf registration statement, other than pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing ofan underwritten offering, and ending on shall be effected through ▇▇▇▇▇▇▇▇ & Co. or a date firm that is one hundred eighty of the lead underwriters in the IPO and the ▇▇▇▇▇▇ Holders hereby agree to provide prompt written notice to the Company (180including the amount and, if directly placed with an identifiable purchaser, the transferee) days after the effective date ofeach such sale.
(ii) Blackstone and its affiliates may request at any time, a Company-initiated registrationand from time to time, provided that the Company register under the Securities Act all or any portion of the Registrable Securities held by them for sale by written notice delivered to the Company in the manner specified in such notice (including, but not limited to, an underwritten public offering). If such manner is actively employing in good faith an underwritten public offering, the managing underwriter shall be selected by Blackstone.
(iii) The Company shall use all commercially reasonable efforts to cause such registration statement to become effective; file with the SEC within eighty (ii80) after the Company has effected two registrations pursuant to Section 2.1(a) or days (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before if the Company may use a Registration Statement on Form S-3 to register such Registrable Securities and on the 181st day after the IPO if the ▇▇▇▇▇▇ Holders so request at least twenty (20) days prior thereto) after the Company’s good faith estimate receipt of the date initial requesting ▇▇▇▇▇▇ Holders’ or Blackstone’s written notice pursuant to Section 2(a)(i) or (ii), a registration statement for the public offering and sale, in accordance with the method of filing ofdisposition specified by such Holders, of the number of Registrable Securities specified in such notice, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith thereafter use all commercially reasonable efforts to cause such registration statement to become effective within sixty (60) days after its filing. Such registration statement may be on Form S-1 or another appropriate form (including Form S-3) that the Company is eligible to use and that is reasonably acceptable to the managing underwriter; provided, that if the Company is a WKSI, a shelf registration on Form S-3 will, at the request of Blackstone or the ▇▇▇▇▇▇ Holders, cover an unspecified number of shares of Common Stock to be sold by the Company and the Holders; provided further, that, the ▇▇▇▇▇▇ Holders shall not demand or request that the Company file a shelf registration statement prior to the 181st day after the IPO (and in order for the Company to be obligated to file such shelf registration statement on such 181 st day, the ▇▇▇▇▇▇ Holders must have made the relevant request at least 20 days prior to such date).
(iv) The Company shall not have any obligation hereunder, except in connection with any one registration pursuant to Section 2(a)(vi), to register any Registrable Securities under Section 2(a)(i) unless it shall have received requests from Holders to register at least five percent (5%) of the Outstanding Registrable Securities. Notwithstanding anything to the contrary contained herein, the Company shall not have any obligation hereunder, except as and to the extent provided by Section 2(a)(vi) or Section 7(b), to permit or participate in more than an aggregate total of any two of the following: (A) the filing of any registration statements filed upon the demand of the ▇▇▇▇▇▇ Holders pursuant to Section 2(a)(i) (excluding the filing of a shelf registration statement if the ▇▇▇▇▇▇ Holders have requested it to be filed on the 181st day after the IPO) and any related offerings, and (B) if the Company has effected two registrations underwritten takedowns requested pursuant to Section 2.1(b2(a)(vii) within by the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable ▇▇▇▇▇▇ Holders from a registration statement that has been declared effective by prior to the SEC, unless time the Initiating Holders withdraw their request for such registration, elect not an underwritten takedown is made.
(v) If the Company is required to pay use all commercially reasonable efforts to register Registrable Securities in a registration initiated upon the registration expenses therefor, and forfeit their right to one demand registration statement of any Holder pursuant to Section 2.62(a)(i) or (ii) of this Agreement and the managing underwriters for such offering advise that the inclusion of all securities sought to be registered pursuant to Section 2 or 3 hereof may interfere with an orderly sale and distribution of or may materially adversely affect the price of such offering, then the Company will include in such offering (x) first, the aggregate number of Registrable Securities requested to be included by the Holders pursuant to Section 2(a)(i) or (ii), as the case may be, and Section 3 which case the managing underwriters advise will not likely have such withdrawn effect, allocated pro rata based on the number of securities duly requested to be included in such registration and (y) second, all other securities requested to be included in such registration.
(vi) If all of the Registrable Securities of the ▇▇▇▇▇▇ Holders requested to be included in any registration pursuant to Section 2(a)(i) are not included in such registration as a result of the inclusion of any Registrable Securities in such registration pursuant to Section 3, the ▇▇▇▇▇▇ Holders shall have one additional registration right under Section 2(a)(i).
(vii) Upon the demand of a Requesting ▇▇▇▇▇▇ ▇▇▇▇▇▇ or Blackstone pursuant to Section 2(a)(i) or (ii) made at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” of shares of Common Stock off of an effective shelf registration statement on Form S-3. Notwithstanding the foregoing, such Holders may not demand a shelf takedown for an offering that will result in the imposition of a lockup on the Company and the Holders unless the shares requested to be sold by the demanding Holders in such takedown have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of at least $50 million.
(viii) Upon the demand of a Requesting ▇▇▇▇▇▇ ▇▇▇▇▇▇ or Blackstone, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement on Form S-3 in order to register up to the number of shares previously taken down off of such shelf by such Holder and not yet “reloaded” onto such shelf registration statement. The Requesting ▇▇▇▇▇▇ ▇▇▇▇▇▇ or Blackstone, as applicable, and the Company will consult and coordinate with each other in order to accomplish such replenishments from time to time in a sensible manner.
(b) Notwithstanding any other provision of this Agreement, the Company shall have the right to defer or suspend the filing or effectiveness of a registration statement relating to any registration requested under Section 2(a) for a reasonable period of time not to exceed 90 days if a prior registration statement of the Company for an underwritten, public offering by the Company of its securities was declared effective by the SEC less than 120 days prior to the anticipated effective date of the requested registration.
(c) No registration of Registrable Securities under this Article 2 shall relieve the Company of its obligation (if any) to effect registrations of Registrable Securities pursuant to Article 3.
(d) For the avoidance of doubt, except as provided under Article 13, no Holder other than a ▇▇▇▇▇▇ ▇▇▇▇▇▇ or Blackstone shall be counted as “effected” for purposes of entitled to any rights under this Section 2.1(d)Article 2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Graham Packaging Co Inc.), Registration Rights Agreement (Graham Packaging Co Inc.)
Demand Registration. The Mezzanine Holders shall have demand registration rights with respect to their Registrable Stock on the same terms and conditions as the demand registration rights of the DLJ Entities as set forth in Section 5.1 of the Stockholders Agreement, and the provisions of such Section 5.1 shall apply mutatis mutandis to the Registrable Stock of the Mezzanine Holders as though such Mezzanine Holders were "Selling Stockholders", subject to the following modifications:
(a) Form S-1 Demand. If at any time one hundred eighty (180) days The Mezzanine Holders may request a Demand Registration only after the effective date earlier to occur of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall following: (i) within ten (10) days after the date such request that is given, give notice thereof (three years from the “Demand Notice”) to all Holders other than the Initiating Holders date of this Amendment and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request that is given by six months from the Initiating date of the Initial Public Offering.
(b) The Company shall not be obligated to effect more than three Demand Registrations for the Mezzanine Holders, file a Form S-1 registration statement under the Securities Act covering all .
(c) The number of shares of Registrable Securities that the Initiating Holders requested Stock required to be registered by the Mezzanine Holders in connection with a Demand Registration must have a fair market value in the reasonable opinion of DLJ Investment Partners II, L.P. exercised in good faith of at least $5,000,000 or, if less than $5,000,000, constitute all of the remaining shares of Preferred Stock or Common Stock, as the case may be, held by the Mezzanine Holders.
(d) If a Demand Registration requested by the Mezzanine Holders involves a Public Offering and any additional Registrable the managing underwriter shall advise the Company and such Mezzanine Holders that, in its view, (i) the number of Company Securities requested to be included in such registration (including Common Stock which the Company proposes to be included which is not Registrable Stock) or (ii) the inclusion of some or all of the Company Securities owned by any other the Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each either case, subject to exceeds the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statementMaximum Offering Size, the Company receives a request from Holders of at least ten percent (10%will include in such registration Company Securities up to the Maximum Offering Size in the priority set forth in Section 5.1(d) of the Registrable Securities then outstanding that Stockholders Agreement in the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities case of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice Registration made by a DLJ Entity or its Permitted Transferee, with the exception that first priority shall be given to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities Stock requested to be included in registered by the Selling Stockholder and by all other Mezzanine Holders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such registration by any other Holders, as specified by notice given by each such Holder to entities on the Company within twenty (20) days basis of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose relative number of shares of Registrable Securities that may Stock requested to be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(dregistered).
Appears in 2 contracts
Sources: Stockholders Agreement (Manufacturers Services LTD), Preferred Stock and Warrant Subscription Agreement (Manufacturers Services LTD)
Demand Registration. (a) Form S-1 Demand. If at At any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days on or after the date such request is givensix (6) months following the date hereof, give Buyer may, by written notice thereof to Seller (the “a "Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable"), and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement demand that Seller register for sale under the Securities Act covering all Registrable Securities or any portion of the Conversion Shares or Warrant Shares (including shares covered by the Notes and/or Warrants to the extent Seller receives appropriate assurances that such Notes or Warrants will be converted or exercised prior to or upon the effectiveness of such registration) held by Buyer (or its successor in interest or transferee) in the amount and manner specified in the Demand Notice; PROVIDED, HOWEVER, that the Initiating Holders requested reasonably anticipated aggregate price of the securities to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder offered to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject public would exceed $500,000. Seller shall be obligated to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration register securities pursuant to this Section 2.1 6.2(b)(i) on two (2) occasions only; PROVIDED, HOWEVER, that if Seller is a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental registrant then entitled to the Company and its stockholders for such file a registration statement to either become effective on Form S-3 or remain effectiveany successor form thereto, then the Company Seller shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(aregister Buyer's securities on one (1) (i) during the period additional occasion if Buyer provides a Demand Notice requesting that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may its securities be immediately registered on Form S-3 pursuant to or any successor form thereto; and PROVIDED, FURTHER, that any such obligation shall be deemed satisfied only when a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to covering all registrable securities specified in the Demand Notice shall have become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)effective.
Appears in 2 contracts
Sources: Note Purchase Agreement (Immune Response Corp), Note Purchase Agreement (Immune Response Corp)
Demand Registration. (ai) Form S-1 Demand. If at any time one hundred eighty (180) days after Subject to the effective date conditions of the registration statement for the IPOthis Section 6.1(a), if the Company receives shall receive a written request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding Investors on one or more occasions that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act, on Form S-1 (“Long-Form Registration”), Form S-3 (“Short-Form Registration”), or any successor form thereto, covering the registration of the Shares, then the Company shall, as expeditiously as reasonably possible, effect the registration under the Securities Act covering of all Registrable Securities (as defined below) that the Initiating Holders Investors have requested to be registered, provided that for any registration pursuant to this Section 6.1(a), the aggregate market value of the Registrable Securities to be registered (or included in a takedown from a Resale Shelf involving an underwritten offering or a block trade) must be at least $20 million as of the date of the request for such registration or takedown (or at least $10 million as of the date of such request in the event that the Registrable Securities to be registered (or included in a takedown from a Resale Shelf involving an underwritten offering or a block trade) constitute all Registrable Securities as of the date of such request). At any time when the Company is eligible to file a registration statement on Form S-3 for a secondary offering of equity securities pursuant to Rule 415 under the Securities Act (a “Resale Shelf”), any registration statement requested pursuant to this Section 6 shall be made as a Resale Shelf. In such event, unless a shorter period is requested by the Investors, the Company shall maintain such Resale Shelf until the earliest of (i) the date on which the Investors cease to hold Registrable Securities covered by such Resale Shelf, (ii) the third anniversary of the date of filing such registration statement and (ii) the date as of which there are no longer any additional Registrable Securities covered by such Resale Shelf. Following the effectiveness of a Resale Shelf, any resale of Shares pursuant to this Section 6 shall be in the form of a “takedown” from such Resale Shelf rather than a separate registration statement. Each Investor agrees that, except as required by applicable law, such Investor shall treat as confidential the submission of a request for registration and shall not disclose or use the information contained in such request without the prior written consent of the Company 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 Investor in breach of the terms of this Agreement.
(ii) If the Investors intend to distribute the Registrable Securities covered by its request by means of an underwriting, the Investors shall so advise the Company as part of its request made pursuant to this Section 6.1(a). In such case, each of the Company and the Investors shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Investors participating in the offering (which underwriter or underwriters shall be reasonably acceptable to the Company). If the underwriter advises the Company that marketing, pricing or other similar factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise the Investors, and the number of shares that may be included in the underwriting shall be reduced accordingly pro rata among the respective holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced below 25% of the Registrable Securities requested to be included in such registration unless all other securities of the Company are first entirely excluded from the underwriting.
(iii) The Investors shall be entitled to only up to two (2) Long-Form Registrations (provided that the Investors shall only be entitled to request the second Long-Form Registration at a time when the Company is not eligible to file a registration statement on Form S-3 for a secondary offering of equity securities) and up to five (5) Short-Form Registrations (including takedowns from a Resale Shelf involving an underwritten offering or a block trade) pursuant to this Section 6.1(a), provided, however, that if the number of shares of Registrable Securities requested by any other Holdersthe Investors to be included in either a Short-Form Registration or a Long Form Registration is reduced by more than 20% below that number requested by the Investors pursuant to Section 6.1(a)(ii), as specified by notice given by each such Holder registration shall not count against the limits set forth in this Section 6.1(a)(iii).
(iv) The Company shall not be required to effect a registration, or a takedown from a Resale Shelf (which, solely in the case of clauses (B), (D) and (E) below, involves an underwritten offering or a block trade), pursuant to this Section 6.1(a):
(A) prior to the expiration of the Holdback Period;
(B) within 90 days after the Company has effected a registration, or a takedown from a Resale Shelf involving an underwritten offering or a block trade, pursuant to this Section 6.1(a) and such registration has been declared or ordered effective or such takedown from a Resale Shelf shall have been completed;
(C) if, within twenty five (205) days of receipt of a written request from the date the Demand Notice is given, and in each case, subject Investor pursuant to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statementthis Section 6.1(a), the Company receives a request from Holders of at least ten percent (10%) acting in good faith gives notice to the Investor of the Registrable Securities then outstanding that the Company Company’s intention to file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date days, other than pursuant to a Special Registration Statement; provided, that such right to delay a request is given shall be exercised by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included Company not more than once in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty twelve (2012) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.month period,
(cD) Notwithstanding the foregoing obligations, if the Company furnishes shall furnish to Holders requesting a registration pursuant to this Section 2.1 the Investor a certificate signed by the Company’s chief executive officer Chairman of the Board of Directors or the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective be effected at such time (including without limitation if such registration statement would materially adversely affect any proposal or remain effectiveplan of the Company or its Subsidiaries to engage in any material acquisition of assets or stock or any merger, then consolidation, tender offer, recapitalization, reorganization or other transaction involving the Company or its Subsidiaries), in which event the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after receipt of the request of the Initiating Holders is givenInvestor; providedprovided such sixty (60 day period may be extended for an additional sixty (60) days with the consent of the Investors requesting the registration, howeverwhich consent shall not be unreasonably withheld; provided further, that such right to delay a request shall be exercised by the Company may not invoke this right more than once in any twelve (12) month period; or
(E) more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationperiod.
(dv) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during may suspend the period use of a prospectus that is part of a Resale Shelf for up to sixty (60) days before in the Company’s good faith estimate circumstances specified in Section 6.1(a)(iv)(D) upon delivering to the Investor the certificate specified in Section 6.1(a)(iv)(D) (a “Suspension Notice”); provided such sixty (60 day period may be extended for an additional sixty (60) days with the consent of the date of filing ofInvestor, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company which consent shall not be obligated to effectunreasonably withheld; provided further, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that such suspension right shall be exercised by the Company is actively employing not more than once in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the any twelve (12) month period immediately preceding the date of such requestperiod. A registration holder of Registrable Securities shall not be counted effect any sales of Registrable Securities pursuant to such registration Statement at any time after it has received a Suspension Notice from the Company and prior to receipt of an End of Suspension Notice (as defined below). The holders may recommence effecting sales of the Registrable Securities pursuant to the Resale Shelf following further written notice to such effect (an “effected” for purposes End of Suspension Notice”) from the Company to the holders. The Company shall act in good faith to permit any suspension period contemplated by this Section 2.1(d6.1(a)(v) to be concluded as promptly as reasonably practicable.
(vi) Each Investor agrees that, except as required by applicable law, such Investor shall treat as confidential the receipt of any notice pursuant to Section 6.1(a)(iv)(D) or any Suspension Notice and shall not disclose or use the information contained in such notice without the prior written consent of the Company until such time as the applicable registration statement has been declared effective information contained therein is or becomes available to the public generally, other than as a result of disclosure by an Investor in breach of the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes terms of this Section 2.1(d)Agreement.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (TerraForm Power, Inc.), Common Stock Purchase Agreement (TerraForm Power, Inc.)
Demand Registration. (a) Form S-1 Demand. If at At any time after the date that is one hundred and eighty (180) days after the effective date of the registration statement for IPO Underwriting Agreement (or such earlier date as is permitted by the terms, or any waiver, of an applicable lock-up agreement entered into with the underwriters in connection with the IPO), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company receives (a request from Holders “Demand”) for registration under the Securities Act of at least thirty-five percent a number of Registrable Securities that equals or is greater than the Registrable Amount (35%a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 5.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 5.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then outstanding known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within two (2) Business Days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 5.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five (5) Business Days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 5.1(b).
(c) Each Demand Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder Beneficially Owns together with its Affiliates less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 5.2 (subject to Section 5.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included or (B) within ninety (90) days of any other Underwritten Offering pursuant to Section 5.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non- public information that the Company file has a Form S-1 bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with respect to at least thirty-five percent Section 5.4.
(35%f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities then outstanding included in which such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the anticipated aggregate offering priceCompany, net in writing, that, in its opinion, the inclusion of Selling Expensesall of the securities, including securities of the Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would exceed $10 millionadversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) within ten (10) days after first, up to the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional number of Registrable Securities requested to be included in such registration Demand Registration by any other Holdersthe Stockholders, as specified by notice given by each such Holder to which, in the Company within twenty (20) days opinion of the date underwriter can be sold without adversely affecting the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) marketability of the Registrable Securities then outstanding that offering, pro rata among such Stockholders requesting such Demand Registration on the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities basis of the number of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall securities held by such Stockholders and such Stockholders that are Piggyback Sellers (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and as defined below); (ii) as soon as practicablesecond, securities the Company proposes to sell; and in any event within forty-five (45iii) days after third, all other securities of the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities Company duly requested to be included in such registration by any other Holdersstatement, as specified by notice given by each such Holder to pro rata on the Company within twenty (20) days basis of the date number of such other securities requested to be included or such other method determined by the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3Company.
(cg) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating Any investment bank(s) that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action will serve as an underwriter with respect to such filingDemand Registration or, and if such Demand Registration is not an Underwritten Offering, any time periods with respect to filing or effectiveness thereof investment bank engaged in connection therewith, shall be tolled correspondingly, for selected by the Stockholder participating in such Demand Registration that holds a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares number of Registrable Securities that may be immediately registered on Form S-3 pursuant to included in such Demand Registration constituting a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate plurality of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing all Registrable Securities included in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Demand Registration.
Appears in 2 contracts
Sources: Investor Rights Agreement (Chewy, Inc.), Investor Rights Agreement (Chewy, Inc.)
Demand Registration. (a) Form S-1 Demand. If at At any time one hundred eighty (180) days after the effective first anniversary of date of the registration statement for the IPOhereof, the Company receives a request from Holders of holding at least thirtyfifty-five one percent (3551%) of the Registrable Securities then outstanding held by the Holders may require that the Company file a registration statement on Form S-1 under the Securities Act of all or any part of their Registrable Securities (a "Demand Registration"), subject to the terms and conditions of this Agreement; provided, however, that the Company shall not be obligated to effect more than two (2) registrations on Form S-1 pursuant to this Section 2.1(a). Any request for a Demand Registration shall specify the approximate number of shares of Registrable Securities requested to be registered and the intended method of distribution of the shares. The Company shall, as use its best efforts to effect the registration statement with respect on Form S-1 of the Registrable Securities (including pursuant to a shelf registration statement) which the Company has been requested to register pursuant to this Section 2.1(a). No additional registrations shall be made by the Company during the one hundred eighty (180) day period following the effective date of any demand registration pursuant to this Section 2.1(a).
(b) In the event the Holders own Registrable Securities at such time as the Company shall have qualified for the use of Form S-3 (or any similar form or forms promulgated by the Commission), Holders of at least thirty-five fifteen percent (3515%) of the Registrable Securities then outstanding held by the Holders shall have the right to request, in which addition to the anticipated aggregate offering priceDemand Registrations, net of Selling Expensesadditional registrations on Form S-3 or its successor form, would exceed $10 millionas the case may be (collectively, then "Form S-3") and the Company shall (i) within ten (10) days after the date such request is given, promptly give notice thereof (the “Demand Notice”) of such proposed registration to all Holders other than of Registrable Securities and the Initiating Holders and (ii) Company shall, as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and practicable but in any event within forty-five (45) days after thereafter, use its best efforts to effect the date such request is given by the Initiating Holders, file a registration on Form S-3 registration statement under of the Securities Act covering all Registrable Securities (including pursuant to a shelf registration statement) which the Company has been requested to be included register (a) in such registration by each request and (b) in any other Holders, as specified by notice response given by each such Holder to the Company within twenty thirty (2030) days of the date receipt of the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if notice from the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given2.1(b); provided, however, that the Company may shall not invoke this right be obligated to file and cause to become effective (i) more than twice two registrations in any twelve (12) month period under this Section 2.1(b) or (which ii) any Registration Statement on Form S-3 where the proposed aggregate offering price of the Registrable Securities to be sold thereunder is less than $1,000,000.
(c) If an offering pursuant to this Section 2 is underwritten and the managing underwriter(s) advises the Company in writing that in their reasonable and good faith opinion the number of shares of Registrable Securities required to be registered exceeds the number of shares of Registrable Securities that can be sold in an orderly manner in such offering within a price range acceptable to the Company and the Holders, the securities requested by the Company to be included, if any, shall first be excluded from such registration to the extent so required by such limitation; to the extent additional shares need to be excluded in order to conform to such limitation, the securities of the Company held by stockholders of the Company other than the Holders (the "Other Stockholders") shall next be excluded; and then, to the extent additional shares still need to be excluded in order to conform to such limitation, the Registrable Securities requested to be registered by the Holders shall be reduced pro rata based upon the number of shares of Registrable Securities owned by such Holders. The Company shall advise all holders of securities requesting registration as to the number of shares of securities that may be included in the registration and underwriting as allocated in the foregoing manner. If more than twenty percent (20%) of the Registrable Securities of the Holders are excluded pursuant to this Section 2.1(c), such registration will not constitute a Demand Registration pursuant to Section 2.1(a). If any Other Stockholder or Holder who has requested inclusion in such registration as provided in Section 2.1(a) or Section 2.1(b) disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the underwriter and the Holders initiating such registration. The securities so withdrawn shall also be withdrawn from registration. If the underwriter has not limited the number of shares to be underwritten and otherwise determine that it would not have a material adverse effect on the marketing of the Registrable Securities, the Company may include its securities for consecutive sixty (60) day periods aggregating its own account in such registration if the underwriter so agrees and if the number of shares of Registrable Securities and other securities of the Holders that would otherwise have been included in such registration and underwriting will not be limited thereby.
2.2 The Holders will have the right to select one or more underwriters to manage an offering under Section 2.1, which underwriters shall be reasonably acceptable to the Company. The right of any Holder to participate in an underwritten offering under Section 2.1 shall be conditioned upon such Holder's agreement to the terms of such underwriting, including the execution of an underwriting agreement with the underwriters in form and substance reasonably acceptable to the Company. In the event that the Company determines that proceeding with an offering pursuant to this Section 2 would materially interfere with, or require premature disclosure of, business activities or plans of the Company, or give rise, solely because of its timing, to any legal or contractual liability on the part of the Company, the Company may, by written notice, delay for a reasonable period of time the registration or offering, but in no event longer than one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for exercise its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated right to effect, or to take any action to effect, any delay a registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, 2.2 more than once in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)any twelve month period.
Appears in 2 contracts
Sources: Registration Rights Agreement (U S Realtel Inc), Registration Rights Agreement (U S Realtel Inc)
Demand Registration. (a) Form S-1 Demand. If On or after the 18-month anniversary of the Closing Date, upon the written request of the holders of at least 40% of the then outstanding Registrable Securities held by the Investor Stockholders (the “Demand Party”) requesting that the Company effect the registration under the Securities Act of all or part of such Demand Party’s Registrable Securities and specifying the amount and intended method of disposition thereof, including without limitation, if requested on or after the 24-month anniversary of the Closing Date, pursuant to a shelf registration statement utilizing Rule 415 of the Securities Act (or its successor provision), and thereupon will, as expeditiously as reasonably practicable, use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register by the Demand Party; provided that in no event shall the Company be required to effect more than three (3) registrations pursuant to this Section 4.2; provided, further, that in no event shall the Company be obligated to prepare and file any time one hundred eighty (180) such registration statement or any supplemental prospectus with respect to a sale of Registrable Securities that would not obtain a minimum sales price of $25 million; provided, further, that the Company shall not be obligated to file a registration statement under this Section 4.2 within a period of 90 days after the effective date of the any other registration statement for which the IPO, Holders exercised their rights under Section 4.1 or for which the Company receives a request from Holders of at least thirty-five percent (35%) filed pursuant to this Section 4.2; provided, further, that if all of the Registrable Securities then outstanding that held by a Holder (together with those of its Affiliates) can be sold without restriction under SEC Rule 144(k), the Company file a Form S-1 shall not be required to effect any registrations for such Holder pursuant to this Section 4.2 (but shall be required to maintain the effectiveness of any shelf registration statement with respect as required by Section 4.3(b)). Nothing in this Section 4.2 shall limit the right of any Holder to at least thirty-five percent (35%) request the registration of the Registrable Securities then outstanding in which issuable upon conversion of the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given Subject Shares held by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to notwithstanding the Company within twenty (20) days fact that at the time of the date the Demand Notice is given, request such Holder holds Series B Preferred Stock and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of not the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3Securities.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 2 contracts
Sources: Stockholders Agreement (Homestore Inc), Stockholders Agreement (Homestore Inc)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after The Company may include in a Demand Registration Registrable Securities for the effective date account of the registration statement Demanding Holders and shares of Common Stock for the IPOaccount of the Company or other stockholders exercising contractual piggy-back registration rights or other stockholders, on the same terms and conditions as the Registrable Securities are included therein for the account of the Demanding Holders; provided, however, that (i) if the managing underwriter(s) of any underwritten offering that is the subject of such Demand Registration have informed the Company in writing that in their opinion the total number of securities that the Demanding Holders, the Company receives and any other stockholders intend to include in such offering exceeds the number which can be sold in such offering within a request from price range acceptable to the Holders of at least thirty-five percent (35%) a majority of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included therein, then (x) the number of Shares to be offered for the account of any stockholders other than the Demanding Holders shall be reduced (to zero, if necessary) pro rata in such registration by any other Holders, as specified by notice given by each such Holder proportion to the Company within twenty (20) days respective number of the date the Demand Notice is givenShares requested to be registered by such stockholders, and in each case(y) thereafter, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statementif necessary, the Company receives a request from Holders number of at least ten percent (10%) Shares to be offered for the account of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall be reduced (i) within ten (10) days after to zero, if necessary), to the date such request is given, give a Demand Notice extent necessary to all Holders other than reduce the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities total number of Shares requested to be included in such registration by any other Holders, as specified by notice given by each such Holder offering to the Company within twenty number of Shares, if any, recommended by such managing underwriter(s) (20) days and if the number of Shares to be offered for the account of stockholders other than the Demanding Holders and for the account of the date the Demand Notice is givenCompany has been reduced to zero, and the number of Shares requested to be included in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed such offering by the Company’s chief executive officer stating that in Demanding Holders exceeds the good faith judgment number of the Board it would be materially detrimental to the Company and its stockholders for Shares recommended by such registration statement to either become effective or remain effectivemanaging underwriter(s), then the Company shall have number of Shares to be offered for the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof account of the Demanding Holders shall be tolled correspondingly, for a period reduced pro rata in proportion to the respective number of not more than sixty (60Shares requested to be registered by the Demanding Holders) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period offering that is thirty the subject of such Demand Registration is not underwritten, only Demanding Holders, and no other party (30) days before including the Company’s good faith estimate ), shall be permitted to include securities in such Demand Registration unless the Demanding Holders owning a majority of the date of filing of, and ending on a date that is ninety (90) days after Shares included in such Demand Registration consent in writing to the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date inclusion of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)securities therein.
Appears in 2 contracts
Sources: Registration Rights Agreement (Royal Ahold), Registration Rights Agreement (Peapod Inc)
Demand Registration. (ai) Form S-1 Demand. If at any time one hundred eighty Upon the earlier of (180A) days after the effective date third anniversary of the Closing Date and (B) the occurrence of a Demand Event (but only if a Demand Event Tag Along Right or Demand Event Drag Along Right has not been exercised), the Investor shall have the right, upon delivery of written notice to the Company (not more than twice in any 12-month period and subject, in each case, to Section 10(a) hereof) to require the Company to register under the Securities Act such amount of Registrable Securities owned by the Investor as may be specified in such notice in accordance with the procedures set forth in this Section 11(b), provided, that any such registration demanded by the Investor under this Section 11(b)(i) must be for an amount of Common Stock having an aggregate anticipated sales price of at least $25,000,000. The rights of the Investor to demand the registration of its Registrable Securities shall continue until (x) all the Registrable Securities owned by it shall have been Transferred to transferees who are not entitled to the registration rights of the Investor hereunder in accordance with Section 15 hereof or, if earlier, (y) all its remaining Registrable Securities are already included in an effective resale registration statement on Form S-3 or other appropriate form for continuous or delayed offerings or are eligible to be Transferred in Public Sales to U.S. persons in the IPOUnited States without registration under the Securities Act and without being subject to volume limitations under Rule 144 under the Securities Act, provided, in the case of (y), that there is a public float of the Common Stock equal to at least 15% of the total outstanding shares of Common Stock.
(ii) If, by the fifth anniversary of the Closing Date, the Company receives has not completed one or more Public Sales which have resulted in a request from Holders public float of the Common Stock equal to at least 15% of the total outstanding shares of Common Stock, then the Investor shall have the right to require the Company to register and effect a Public Sale of a sufficient number of shares of newly issued Common Stock which, together with shares of Common Stock being resold by WWC or any Other Shareholders (as defined below) and shares of Common Stock previously sold in Public Sales, will result in a public float of at least thirty-five percent (35%) 15% of the total outstanding shares of Common Stock, all in accordance with the procedures set forth in this Section 11(b) for the registration of Registrable Securities.
(iii) If the Investor shall have demanded a registration of Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect (which term will include for this purpose newly issued shares of Common Stock referred to at least thirty-five percent (35%in Section 11(b)(ii) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, hereof) then the Company shall will:
(iA) within ten (10promptly give written notice of the proposed registration to all other shareholders entitled to piggyback registration rights under Section 11(c) days after hereof or any other contractual agreement of the date such request is given, give notice thereof Company (the “Demand Notice”"Other Shareholders") to all Holders other than the Initiating Holders and and
(iiB) as soon as practicable, use its best efforts to prepare and file with the Commission and cause to become effective such registration statement as would permit or facilitate the sale and distribution of all the Registrable Securities required to be covered thereby pursuant to the notice delivered by the Investor, together (subject to Section 11(b)(iv) below) with all or such portion of the securities of any Other Shareholders joining in such registration as are specified in written requests received by the Company within ten Business Days after written notice from the Company is delivered under Section 11(b)(iii)(A) above.
(iv) The Investor, at its election, shall have the Registrable Securities covered by its request distributed by means of an underwritten public offering with a single or managing underwriter selected by the Company and reasonably acceptable to the Investor. If any event within sixty Other Shareholders so request, the securities of such Other Shareholders shall be included in the registration and underwriting being effected pursuant to this Section 11(b), subject to this Section 11(b)(iv). The Investor and the Company shall (60together with all Other Shareholders proposing to distribute their securities through such underwriting) days enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company and reasonably acceptable to the Investor (the "Representative"). Notwithstanding any other provision of this Section 11(b), if the Representative advises the Investor and the Company in writing that (x) marketing factors require a limitation on the number of shares to be underwritten or (y) the inclusion of shares held by officers and directors of the Company in the offering could, in the Representative's best judgment, materially reduce the offering price per share, then, in the case of the preceding clause (x), the Common Stock held by Other Shareholders shall be excluded from such underwriting to the extent so required by such limitations and, in the case of the preceding clause (y), the Common Stock held by officers and directors of the Company shall be excluded from such underwriting to the extent advised by the Representative. If, after the date exclusion of such request is given shares, further reductions are required to meet the limitation on the number of shares to be underwritten as advised by the Initiating HoldersRepresentative, file then the Investor may elect, in its sole discretion, to reduce the number of shares that will be included in the underwriting by it by such number of shares as is necessary to comply with such limitation, but in no event to an amount which is below the minimum amount for a Form S-1 demand registration statement as provided in Section 11(b)(i). If the Investor does not so elect, then the registration of its shares under Section 11(b)(i) will not proceed and will be terminated without liability to any other Person. If the Securities Act covering all Representative has not limited the number of Registrable Securities that the Initiating Holders requested or other securities to be registered underwritten, the Company may include its securities for its own account in such registration if the Representative so agrees and any additional if the number of Registrable Securities requested to be which would otherwise have been included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3underwriting will not thereby be limited.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(cv) Notwithstanding the foregoing obligationsforegoing, if the Company furnishes shall furnish to Holders requesting a registration pursuant to this Section 2.1 the Investor and the Other Shareholders a certificate signed by the Company’s chief executive officer President or Chief Executive Officer of the Company stating that that, in the good faith judgment of the Board Board, it would be materially detrimental to the Company and its stockholders shareholders for such registration statement to either become effective or remain effectivebe filed and that it is therefore essential to defer the filing of such registration statement, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) 90 days after the request delivery of the Initiating Holders is given; providedsuch certificate, however, provided that the Company may Investor shall not invoke this right be required to accept such a deferral more than twice in any twelve (12) -month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationperiod.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 2 contracts
Sources: Shareholder Agreement (Hutchison Whampoa LTD /Wav), Shareholders Agreement (Voicestream Wireless Holding Corp)
Demand Registration. (a) Form S-1 Demand. If Subject to the Transfer restrictions set forth in Sections 3.1 and 3.2, at any time during the period commencing as of the end of the Initial Share Holding Period and ending on the ten-year anniversary of the Closing Date, and, in the case of Silver Lake, TPG or August, after the Majority Stockholder has distributed Subject Shares pursuant to Section 3.3, upon the written request of any of the Majority Stockholder, TPG, Silver Lake or August (a "Demand Party") requesting that the Company effect the registration under the Securities Act of all or part of such Demand Party's Registrable Securities (a "Demand Registration") and specifying the amount and intended method of disposition thereof, the Company will promptly give written notice of such requested registration to the Managing Registration Rights Holders (each of such Managing Registration Rights Holders will notify each of the Permitted Transferees of such Managing Registration Rights Holder that holds Registrable Securities) and other holders of securities entitled to notice of such registration and thereupon will, as expeditiously as reasonably possible, file a registration statement to effect the registration under the Securities Act of:
(i) such Registrable Securities which the Company has been so requested to register by the Demand Party;
(ii) the Registrable Securities of other Registration Rights Holders which the Company has been requested to register by written request given to the Company by the Managing Registration Rights Holders within 14 days after the giving of such written notice by the Company to the Managing Registration Rights Holders (which request shall specify the amount and intended method of disposition of such securities); all to the extent necessary to permit the disposition (in accordance with the intended method thereof as aforesaid) of the Registrable Securities and such other securities so to be registered; provided that the Company shall not be required to effect the registration of Registrable Securities (A) at the request of the Majority Stockholder on more than two (2) occasions, (B) at the request of Silver Lake on more than two (2) occasions, (C) at the request of TPG on more than two (2) occasions, or (D) at the request of August on more than one hundred eighty (1801) occasion; provided further, that the Company shall not be obligated to file a registration statement relating to any registration request under this Section 4.2(a):
(1) within a period of 180 days after the effective date of any other registration statement relating to any registration request under this Section 4.2 or relating to any registration statement referred to under Section 4.1 or Section 4.3 hereof; or
(2) if (x) the requested registration pursuant to this Section 4.2 involves a registration on a form other than a Form S-3 (or any successor to Form S-3), and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or
(3) if (x) the requested registration pursuant to this Section 4.2 involves an underwritten offering, and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or
(4) if the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000; or
(5) if with respect thereto the managing underwriter, the SEC, the Securities Act, or the form on which the registration statement is to be filed, would require the conduct of a Special Audit, in which case the filing may be delayed until the completion of such Special Audit (and the Company shall, upon request of TPG, Silver Lake or August, as the case may be, use its commercially reasonable efforts to cause such Special Audit to be completed expeditiously and without unreasonable delay); or
(6) if the Company is in possession of material non-public information and the Board determines in good faith that disclosure of such information would not be in the best interests of the Company and its stockholders, in which case the filing of the registration statement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 120th day after receipt by the Company of the written request from the Majority Stockholder, TPG, Silver Lake or August, as the case may be, to register Registrable Securities under this Section 4.2(a); or
(7) if the Closing Shelf Registration Statement is then effective and available for the IPOsale and distribution of such Demand Party's Registrable Securities in the manner specified in such request.
(b) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 4.2.
(c) A registration requested pursuant to this Article IV will not be deemed to have been effected unless the registration statement filed by the Company with the SEC in connection with such registration has been declared effective by the SEC; provided that, if, within 100 days after it has become effective, the Company receives a request from Holders offering of at least thirty-five percent (35%) Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the Registrable Securities SEC or other governmental agency or court, then outstanding that such registration will be deemed not to have been effected.
(d) If a requested registration pursuant to this Section 4.2 involves an underwritten offering and regardless of whether the Company file is registering any securities therein, the Board shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter.
(e) If a Form S-1 requested registration statement with respect pursuant to at least thirty-five percent (35%) of this Section 4.2 involves an underwritten offering and the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then managing underwriter advises the Company shall (i) within ten (10) days after in writing that, in its opinion, the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional number of Registrable Securities requested to be included in such registration by any other Holdersexceeds the number which can be sold in such offering, so as specified by notice given by each such Holder to be reasonably likely to have an adverse effect on the Company within twenty (20) days price, timing or distribution of the date the Demand Notice is given, and securities offered in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 millionoffering, then the Company shall (i) within ten (10) days after the date will include in such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date registration such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all number of Registrable Securities requested to be included in such registration by any other Holderswhich, as specified by notice given in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, which number shall be allocated pro rata among all such holders of Registrable Securities requesting to be included in such registration based on the relative number of Registrable Securities then held by each such Holder to holder of Registrable Securities. In the Company within twenty (20) days event that the number of the date the Demand Notice is givenRegistrable Securities and Shares of other holders, and in each case, subject case entitled to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action rights with respect to such filingShares requested to be included in such registration is less than the number which, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after in the request opinion of the Initiating Holders is given; providedmanaging underwriter, howevercan be sold, that the Company may not invoke this right more than twice include in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating such registration securities it proposes to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments sell for its own account or that up to the number of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effectsecurities that, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during in the period that is sixty (60) days before the Company’s good faith estimate opinion of the date of filing ofunderwriter, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may can be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)sold.
Appears in 2 contracts
Sources: Stockholders Agreement (Crystal Decisions Inc), Stockholders Agreement (Business Objects Sa)
Demand Registration. (ai) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) a majority of the Registrable Securities then outstanding that held by the Company file HMTF Holders may make up to three (3) written requests for a Form S-1 registration statement with respect to at least thirty-five percent (35%) Demand Registration of all or any part of the Registrable Securities then outstanding held by the HMTF Holders and their direct or indirect transferees; provided, that (A) each such Demand Registration by the HMTF Holders must be in which respect of Registrable Securities with a fair market value of at least $50,000,000 or all of the anticipated Registrable Securities held by the requesting HMTF Holders if the aggregate fair market value of all of such Registrable Securities is less than $50,000,000 and (B) the HMTF Holders shall not be entitled to a Demand Registration if, during the 120 days preceding such request, the HMTF Holders had requested a Demand Registration unless the Company preempted such Demand Registration in accordance with Section 2.1(e) or the Company postponed the filing thereof in accordance with Section 3.1(a) and the requesting HMTF Holders withdrew the request for such Demand Registration. Upon exercise of all or any portion of the Warrants held by the HMTF Holders, the Holders of a majority of the Registrable Securities held by the HMTF Holders may make one (1) additional written request for a Demand Registration, subject to the proviso set forth in the foregoing sentence.
(ii) Holders of a majority of the Registrable Securities held by the Liberty Holders may make up to six (6) written requests for a Demand Registration of all or any part of the Registrable Securities held by the Liberty Holders and their direct or indirect transferees; provided, that (A) each such Demand Registration by the Liberty Holders must be in respect of Registrable Securities with a fair market value of at least $50,000,000 or all of the Registrable Securities held by the requesting Liberty Holders if the aggregate fair market value of all of such Registrable Securities is less than $50,000,000, and (B) the Liberty Holders shall not be entitled to a Demand Registration if, during the 120 days preceding such request, the Liberty Holders had requested a Demand Registration unless the Company preempted such Demand Registration in accordance with Section 2.1(e) or the Company postponed the filing thereof in accordance with Section 3.1(a) and the requesting Liberty Holders withdrew the request for such Demand Registration. Upon exercise of all or any portion of the Warrants held by the Liberty Holders, the Holders of a majority of the Registrable Securities held by the Liberty Holders may make up to two (2) additional written requests for a Demand Registration, subject to the proviso set forth in the foregoing sentence.
(iii) Any request for a Demand Registration will specify the aggregate number of shares of Registrable Securities proposed to be sold by the Requesting Holders and will also specify the intended method of disposition thereof. A registration will not count as a Demand Registration until it has become effective. Should a Demand Registration not become effective due to the failure of a Holder to perform its obligations under this Agreement or the inability of the Requesting Holders to reach agreement with the Underwriters for the proposed sale on price or other customary terms for such transaction, or in the event the Requesting Holders withdraw or do not pursue the request for the Demand Registration (in each of the foregoing cases, provided that at such time the Company is in compliance in all material respects with its obligations under this Agreement), then, subject to Section 2.1(b), such Demand Registration shall be deemed to have been effected (provided that (i) if, the Demand Registration does not become effective because a material adverse change has occurred, or is reasonably likely to occur, in the condition (financial or otherwise), business, assets or results of operations of the Company and its subsidiaries taken as a whole subsequent to the date of the written request made by the Requesting Holders (ii) if the Company withdraws the Demand Registration for any reason or preempts the request for the Demand Registration or (iii) if, after the Demand Registration has become effective, an offering priceof Registrable Securities pursuant to a registration is interfered with by any stop order, net injunction, or other order or requirement of Selling Expenses, would exceed $10 millionthe Commission or other governmental agency or court or (iv) if the Demand Registration is withdrawn at the request of the Requesting Holders pursuant to Section 2.1(f) or Section 3.1(a), then the Demand Registration shall not be deemed to have been effected and will not count as a Demand Registration).
(iv) Upon receipt of any request for a Demand Registration by holders of a majority of the Registrable Securities held by the HMTF Holders or the Liberty Holders, as the case may be, the Company shall promptly (i) but in any event within ten (10) days) give written notice of such proposed Demand Registration to the HMTF Holders, in the case of a request by an HMTF Holder, and to the Liberty Holders, in the case of a request by a Liberty Holder, and all such HMTF Holders or Liberty Holders, as the case may be (including their respective direct or indirect transferees) shall have the right, exercisable by written notice to the Company within twenty (20) days of their receipt of the Company's notice, to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All such Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be "Requesting Holders" for purposes of this Section 2.1.
(b) In the event that the Requesting Holders withdraw or do not pursue a request for a Demand Registration and, pursuant to Section 2.1(a) hereof, such Demand Registration is deemed to have been effected, the Holders may reacquire such Demand Registration (such that the withdrawal or failure to pursue a request will not count as a Demand Registration hereunder) if the Selling Holders reimburse the Company for any and all Registration Expenses incurred by the Company in connection with such request for a Demand Registration that was withdrawn or not pursued.
(c) If the Requesting Holders so elect, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of a "firm commitment" underwritten offering. A majority in interest of the Requesting Holders shall have the right to select the managing Underwriters and any additional investment bankers and managers to be used in connection with any offering under this Section 2.1, subject to the Company's approval, which approval shall not be unreasonably withheld.
(d) The Requesting Holders will inform the Company of the time and manner of any disposition of Registrable Common Stock, and agree to reasonably cooperate with the Company in effecting the disposition of the Registrable Common Stock in a manner that does not unreasonably disrupt the public trading market for the Common Stock; provided, however, that the Holders' only right to a shelf registration statement shall be pursuant to Section 2.3.
(e) The Company will have the right to preempt any Demand Registration with a primary registration by delivering written notice (within seven business days after the date Company has received a request for such request is givenDemand Registration) of such intention to the Requesting Holders indicating that the Company has identified a specific business need and use for the proceeds of the sale of such securities and had contemplated such sale of securities prior to receiving the Requesting Holders' notice, and the Company shall use commercially reasonable efforts to effect a primary registration within 90 days of such notice. In the ensuing primary registration, the Holders will have such piggyback registration rights as are set forth in Section 2.2 hereof. Upon the Company's preemption of a requested Demand Registration, such requested registration will not count as the Holders' Demand Registration. If the Company thereafter decides to abandon its intention to pursue such sale of securities, it shall give notice thereof to any preempted Holders within two business days following the Company's decision. The Company may exercise the right to preempt a Demand Registration only once in any 360-day period; provided, that during any 360-day period the Company shall use its reasonable best efforts to permit a period of at least 180 consecutive days during which the Selling Holders may effect a Demand Registration.
(f) Securities to be sold for the “Demand Notice”account of any Person (including the Company) to all Holders other than a Requesting Holder shall not be included in a Demand Registration if the Initiating managing Underwriter or Underwriters shall advise the Company and the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price of the offering (iia "Material Adverse Effect"). Furthermore, in the event the managing Underwriter or Underwriters shall advise the Company or the Requesting Holders that even after exclusion of all securities of other Persons (including the Company) as soon as practicablepursuant to the immediately preceding sentence, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all amount of Registrable Securities that the Initiating Holders requested proposed to be registered included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which the Company and any additional the Requesting Holders are so advised can be sold in such offering without a Material Adverse Effect and such shares shall be allocated pro rata among the Requesting Holders on the basis of the number of Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is givenRequesting Holder; provided, however, that if any Registrable Securities requested to be registered pursuant to a Demand Registration under Section 2.1 are excluded from registration hereunder, then the Company may not invoke this Holder(s) having shares excluded ("Excluded Holders") shall have the right more than twice to withdraw all, or any part, of their shares from such registration and if withdrawn in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during full such period other than an Excluded Registration.
(d) The Company Demand Registration shall not be obligated deemed to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, have been effected and ending on will not count as a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Demand Registration.
Appears in 2 contracts
Sources: Preferred Stock and Warrant Purchase Agreement (Icg Services Inc), Registration Rights Agreement (Icg Holdings Canada Co /Co/)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty Upon the earlier of (180i) days after the effective fifth anniversary of the date of this Agreement and (ii) the registration statement for six-month anniversary of the Company’s IPO, the Company receives a agrees that, upon the written request from Holders of either RN Stockholder or MTVN Stockholder so long as RN Stockholder or MTVN Stockholder, as applicable, owns at least thirtytwenty-five percent (3525%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) shares of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof Voting Stock (the “Demand NoticeInitiating Holders”) to all Holders other than the Initiating Holders and (ii) a “Demand Registration”), it will as soon promptly as practicable, and reasonably practical (but in any event within sixty (6045 days of receipt of such request) days after the date such request is given by the Initiating Holders, prepare and file a Form S-1 registration statement under the Securities Act covering (a “Registration Statement”, which term will include any amendments thereto and any documents incorporated by reference therein); provided that (i) the Company will not be obligated to effect (x) a Demand Registration if a Registration Statement pursuant to this Section 6.01 or Section 6.02 in which the holders of Registrable Securities had the right to include Registrable Securities was declared effective within 12 months prior to the date of the request for a Demand Registration, so long as the number of Registrable Securities which the holders of Registrable Securities requested to include in such Registration Statement was not reduced pursuant to Section 6.03 or (y) more than one Demand Registration (other than Demand Registrations taking the form of Shelf Options) for each of RN Stockholder and MTVN Stockholder (for a total of up to two Demand Registrations) under this Agreement and (ii) the Registrable Securities for which a Demand Registration has been requested will have a value (based on the average closing price per share of the Common Stock (or any successor security) for the ten trading days preceding the delivery of the Initiating Holders’ request for such Demand Registration, or, if such average trading information is not available, as determined in good faith by the Board) of not less than $10,000,000 (or, in the case of a Shelf Option, $5,000,000); provided further that no registration will be counted towards the limitation in clause (i)(y) of the previous proviso unless all Registrable Securities that the Initiating Holders requested to be registered and any additional where so registered or such registration was withdrawn at the request of the Initiating Holders (other than as a result of a material adverse change to the Company). Each such request for a Demand Registration by the Initiating Holders will specify the number of shares of Registrable Securities requested proposed to be offered for sale and will also specify the intended method of distribution thereof and, following receipt of such demand, the Company will give written notice of such Demand Registration to the holders of Registrable Securities (other than the Initiating Holders) as soon as practicable (but in no event less than 30 days before the anticipated filing date), and upon the written request, given within 15 days after delivery of any such notice by the Company, of any such holder of Registrable Securities (other than the Initiating Holders) to include in such Demand Registration Registrable Securities (which request shall specify the number of Registrable Securities proposed to be included in such registration), the Company will cause all such Registrable Securities to be included in such registration by any other Holders, on the same terms and conditions as specified by notice given by each such Holder to the Company within twenty (20) days Registrable Securities of the date Initiating Holders. Upon the Demand Notice is given, and in each case, subject to the limitations written request of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Initiating Holders of holding at least ten percent (10%) of the Registrable Securities then outstanding that outstanding, the Company file a Demand Registration shall be effected by filing the Registration Statement on Form S-3 registration statement with respect to outstanding (if such form is available for such offering or, if such form is not available for such offering, other appropriate form) (the “Shelf Registration Statement”) which provides for the sale by the Participating Stockholders of their Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then from time to time in underwritten public offerings pursuant to Rule 415 under the Company shall Securities Act (the “Shelf Option”); provided that (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders may not elect the Shelf Option if the request thereunder is in connection with or would constitute the Company’s IPO and (ii) the Initiating Holders may not elect more than one Shelf Option within any 365 day period.
(b) The Company agrees to use its commercially reasonable efforts (i) to cause any Registration Statement to be declared effective (unless it becomes effective automatically upon filing) as soon promptly as practicable, and in any event within forty-five (45) days reasonably practicable after the filing thereof and (ii) to keep such Registration Statement effective for a period of (x) not less than 90 days or, if earlier, the period sufficient to complete the distribution of the Registrable Securities pursuant to such Registration Statement or (y) in the case of a Shelf Registration Statement, for a period ending on the first date on which all the Registrable Securities covered by such request Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement, but in no event longer than 180 days. The Company shall be deemed not to have used its commercially reasonable efforts to keep a Registration Statement effective during the requisite period if it voluntarily takes any action that would result in the Participating Stockholders not being able to offer and sell their Registrable Securities included in such offering during that period, unless such action is given required by applicable Law or is pursuant to Section 6.06. The Company further agrees to supplement or make amendments to the Registration Statement as may be necessary to keep such Registration Statement effective for the period set forth in clause (ii) above, including (A) to respond to the comments of the SEC, if any, (B) as may be required by the Initiating Holdersregistration form utilized by the Company for such Registration Statement or by the instructions applicable to such registration form, file a Form S-3 registration statement under (C) as may be required by the Securities Act covering or the rules and regulations thereunder or (D) the Company as may be reasonably requested in writing by any Participating Stockholder or any Underwriter. The Company agrees, at least ten days before filing with the SEC a Registration Statement or prospectus and at least two days before filing with the SEC any amendments or supplements thereto, to furnish to the Underwriters, if any, to the Participating Stockholders, and to one counsel selected by the Participating Stockholders copies of all Registrable Securities requested such documents proposed to be included in such registration by any other Holdersfiled, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, which documents shall be subject to the limitations review and reasonable comments of Sections 2.1(c) and 2.3such Persons.
(c) In the event an offering of shares of Registrable Securities involves one or more Underwriters, MTVN Stockholder and RN Stockholder (provided that they are Participating Stockholders in such offering) will jointly (and if only one such Stockholder is a Participating Stockholder in such offering, such Stockholder acting individually) select the lead bookrunning Underwriter and any additional Underwriters in connection with the offering, subject to the reasonable approval of the Company.
(d) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to provisions of this Section 2.1 6.01, the holders of Registrable Securities may not request a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for Demand Registration during a period of commencing upon filing (or earlier, but not more than sixty (6030 days prior to such filing upon notice by the Company to the holders of Registrable Securities that it so intends to file) days after the request a Registration Statement for Equity Securities of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of for any other stockholder during such period other than an Excluded Registration.
(dsecurity holder) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) and ending (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) 90 days after such Registration Statement is declared effective by the effective date ofSEC (or becomes automatically effective) or up to 180 days in the case of an underwriting if and to the extent requested by the lead Underwriter, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after upon the Company has effected two registrations pursuant to Section 2.1(a) withdrawal of such Registration Statement or (iii) 30 days after such notice if no such Registration Statement has been filed within such 30-day period, whichever occurs first; provided that the foregoing limitation will not apply if the holders of Registrable Securities were not given the opportunity, in violation of Section 6.01(a) or 6.02, to include its Registrable Securities in the Registration Statement described in this Section 6.01(d); provided, further, that in no event will the holders of Registrable Securities be restricted hereunder for more than 180 days in any 12-month period.
(e) The Initiating Holders will be permitted to rescind a Demand Registration at any time; provided that if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to rescind a request made pursuant to Section 2.1(b). The Company shall not be obligated to effectDemand Registration, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on such Demand Registration will nonetheless count as a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” Demand Registration for purposes of determining when future Demand Registrations can be requested pursuant to this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC6.01, unless the Initiating Holders withdraw their request reimburse the Company for all expenses incurred by the Company in connection with such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Demand Registration.
Appears in 2 contracts
Sources: Stockholder Agreement, Stockholder Agreement (Realnetworks Inc)
Demand Registration. (a) Form S-1 Demand. If at any time the Company shall receive a request from FP; or
(b) if at any time (but only once and provided the right in subsection (c) below has not previously been exercised) during the period beginning on June 29, 2008 and ending on December 29, 2009, the Company shall receive a request from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as agent for the ▇▇▇▇▇▇ Stockholders; or
(c) if at any time following the later of (i) December 29, 2006 and (ii) the day ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ becomes a Non-Employee (as defined herein) (but only once, and provided the right in subsection (b) above has not been exercised, and provided further that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ has ceased to be (A) an employee or (B) a director, provided that he has not ceased to be a director either because he was not elected by the Company's stockholders after having been nominated to stand for election or because he declined to stand for election (in either A or B, a “Non-Employee”), of the Company) at any time during the period beginning on the date hereof and ending on June 28, 2008, the Company shall receive a request from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as agent for the ▇▇▇▇▇▇ Stockholders that the Company effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities (provided however, that any sales made pursuant to a request under Section 2.01(c) may only be effected up to the maximum number of shares that may be sold pursuant to Section 3 of the Lockup Agreement), 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 15 Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon shall use all reasonable 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 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(g) and 2.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholder that any other Stockholders with rights to request registration under Section 2.02 (all such Stockholders, together with the Requesting Stockholder, the “Registering Stockholders”) have requested the Company to register by request received by the Company within 15 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 so to be registered, provided that the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $5,000,000, and provided, further, that the Company shall not be required to effect a Demand Registration pursuant to subsection (b) hereof pursuant to Rule 415 (or its successor provision) and provided, further, that a registration pursuant to subsection (c) shall be, if so requested, pursuant to Rule 415 (or its successor provision) under the Securities Act. In no event shall the Company be required to effect more than one hundred eighty Demand Registration hereunder within any ninety day period.
(180d) days Promptly after the expiration of the 15-Business Day period referred to in Section 2.01(c)(ii), 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 for the IPOrelating 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 Company receives revoking such request.
(e) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected.
(f) 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 request from Holders period of at least thirty-five percent 180 days (35%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 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 SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities then outstanding that the Company file a Form S-1 included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with respect to at least thirty-five percent (35%Section 2.01(g) such that less than 66 2 / 3 % of the Registrable Securities then outstanding of the Requesting Stockholders sought to be included in such registration are included.
(g) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) 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 anticipated aggregate offering price“Maximum Offering Size”), net of Selling Expenses, would exceed $10 million, then the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) within ten (10) days after the date such request is givenFirst, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional by the Requesting Stockholder;
(ii) second, all other Registrable Securities requested to be included in such registration by any Registering Stockholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders, as specified by notice given by each such Holder to Stockholders on the Company within twenty (20) days basis of the date the Demand Notice is given, and in each case, subject to the limitations relative number of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities so requested to be included in such registration by any other Holders, as specified by notice given by each such Holder Stockholder); and
(iii) third, any securities proposed to be registered by the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3Company.
(ch) Notwithstanding the foregoing obligationsUpon notice to each Requesting Stockholder, if the Company furnishes to Holders requesting may postpone effecting a registration pursuant to this Section 2.1 2.01 on one occasion during any period of twelve consecutive months for a certificate signed by the Company’s chief executive officer stating that reasonable time specified in the good faith judgment notice but not exceeding 60 days (which period may not be extended or renewed), if (i) an investment banking firm of the Board it would be materially detrimental to recognized national standing shall advise the Company and its stockholders for the Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of such registration statement to either become effective Company the preparation of which had then been commenced or remain effective, then (ii) the Company shall have is in possession of material non-public information the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period disclosure of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before specified in such notice the Company reasonably believes would not be in the reasonable interests of the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 2 contracts
Sources: Registration Rights Agreement (Leonid & Inna Mezhvinsky as Trustees of the Revocable Trust Agreement of Leonid Mezhvinsky & Inna Mezhvinsky, Dated April 26, 1988), Registration Rights Agreement (Ultra Clean Holdings Inc)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five sixty percent (3560%) of the Preferred Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in for which the anticipated aggregate offering price, net of Selling Expenses, would exceed be at least $10 million, then the Company shall shall: (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders Holders; and (ii) as soon as practicable, and in any event within sixty ninety (6090) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections Section 2.1(c) and Section 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten twenty-five percent (1025%) of the Preferred Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an for which the anticipated aggregate offering price, net of Selling Expenses, of would be at least $5 1 million, then the Company shall shall: (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders Holders; and (ii) as soon as practicable, and in any event within forty-five sixty (4560) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections Section 2.1(c) and Section 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would: (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice once (1x) in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days)period; and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such sixty (60) day period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) ): (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two (2) registrations pursuant to Section 2.1(a) ); or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) ): (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective effective; or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Spero Therapeutics, Inc.), Investors’ Rights Agreement (Spero Therapeutics, Inc.)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after Subject to the effective date conditions of the registration statement for the IPOthis Section 2.2, if the Company receives shall receive a written request from the Holders of at least thirty-five more than fifty percent (3550%) of the Registrable Securities then outstanding (the "INITIATING HOLDERS") that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all the registration of Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder having an aggregate offering price to the public in excess of $10,000,000, then the Company shall, within twenty (20) days of the date the Demand Notice is givenreceipt thereof, give written notice of such request to all Holders, and in each case, subject to the limitations of Sections 2.1(cthis Section 2.2, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered. Notwithstanding any provision herein to the contrary, (i) one hundred percent (100%) of the ZoneNetwork Registrable Securities held by each Holder of ZoneNetwork Registrable Securities, and 2.3each such Holder's permitted transferees or assignees, shall not be included in the Registrable Securities then outstanding for the purposes of this Section 2.2(a) until the date six (6) months from the date of the Original Investors' Rights Agreement, and thereafter fifty percent (50%) of the ZoneNetwork Registrable Securities held by each Holder of ZoneNetwork Registrable Securities, and each such Holder's permitted transferees or assignees, shall not be included in the Registrable Securities then outstanding until the date twelve (12) months from the date of the Original Investors' Rights Agreement and (ii) one hundred percent (100%) of the Golf.▇▇▇ ▇▇▇istrable Securities held by each Holder of Golf.▇▇▇ ▇▇▇istrable Securities, and each such Holder's permitted transferees or assignees, shall not be included in the Registrable Securities then outstanding for the purposes of exercising the demand rights set forth in this Section 2.2(a) until the date six (6) months from the date hereof, and thereafter fifty percent (50%) of the Golf.▇▇▇ ▇▇▇istrable Securities held by each Holder of Golf.▇▇▇ ▇▇▇istrable Securities, and each such Holder's permitted transferees or assignees, shall not be included in the Registrable Securities then outstanding for the purposes of exercising the demand rights set forth in this Section 2.2(a) until the date twelve (12) months from the date hereof; provided that the restrictions set forth in this sentence shall not be interpreted to limit the ability of any Holder of Golf.▇▇▇ ▇▇▇istrable Securities from exercising their rights pursuant to Section 2.3 hereunder.
(b) Form S-3 Demand. If at any time when it is eligible the Initiating Holders intend to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of distribute the Registrable Securities then outstanding that covered by their request by means of an underwriting, they shall so advise the Company file as a Form S-3 registration statement with respect to outstanding Registrable Securities part of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such their request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration made pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental 2.2 or any request pursuant to the Company Section 2.3 or 2.4 and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have include such information in the written notice referred to in Section 2.4(a). In such event, the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated Holder to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of include its Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).such
Appears in 2 contracts
Sources: Note Purchase Agreement (Quokka Sports Inc), Note Purchase Agreement (Quokka Sports Inc)
Demand Registration. (a) Form S-1 At any time, each Holder shall have the right to request (each such request, a "Registration Demand. If at any time one hundred eighty (180") days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement under the Securities Act in respect of all or any portion of such Holder's Eligible Securities; provided that if any Holder shall request that a portion, but not all, of its Eligible Securities be registered in accordance with respect this Section 2.1 (including a requested Takedown pursuant to subsection (c)(ii) below), such portion shall include not less than two hundred and fifty thousand (250,000) shares of Eligible Common Stock (or such lesser number of such shares having a market valuation of at least thirty-five percent (35%) $5,000,000 as of the Registrable date the Registration Demand is made, based on the Closing Price on such date). A Registration Demand shall specify the number of shares of Eligible Common Stock (and, in the case of a Registration Demand by the Initial Holder, the number of Warrants) that each such Holder proposes to sell in the offering. If no Shelf Registration Statement shall be effective as of the date of the Registration Demand, the demanding Holders may elect to register such Eligible Securities in accordance with either Section 2.1(c)(i) or Section 2.1(d). If a Shelf Registration Statement shall be effective as of the date of the Registration Demand, then outstanding all demanding Holders shall be deemed to have elected to register their Eligible Securities pursuant to Section 2.1(c)(ii). The Holders may make in the aggregate two (2) Registration Demands pursuant to Sections 2.1(c)(i) and 2.1(d) and four (4) Registration Demands per year pursuant to an existing Shelf Registration Statement pursuant to Section 2.1(c)(ii) for which the anticipated aggregate offering priceCompany will pay and bear all costs and expenses in accordance with Section 3.3 and thereafter the Holders may make an unlimited number of Registration Demands for which such requesting Holders shall pay and bear all costs and expenses.
(b) Upon receipt of a Registration Demand (other than a Takedown), net of Selling Expenses, would exceed $10 million, then the Company shall give written notice thereof to all of the other Holders at least thirty (i30) days prior to the initial filing of a Registration Statement relating to such Registration Demand. Each of the other Holders shall have the right, within ten twenty (1020) days after the date delivery of such notice, to request that the Company include all or a portion of such Holder's Eligible Securities in such Registration Statement. Upon receipt of a Registration Demand that is givena Takedown, a representative of the selling holders shall give written notice thereof (the “Demand Notice”) to all of the other Holders at least three (3) Business Days prior to the initial filing of a prospectus relating to such Registration Demand. Each of the other than Holders shall have the Initiating Holders and right, within one (ii1) Business Day after the delivery of such notice, to request that the Company include all or a portion of such Holder's Eligible Securities in such Registration Statement.
(i) As promptly as soon as practicable, practicable and in any no event within later than sixty (60) days after the date such request is given by Company receives a Registration Demand electing to register Eligible Securities pursuant to this paragraph (c), the Initiating Holders, Company shall file a Form S-1 registration statement under the Securities Act covering a "shelf" registration statement (the "Shelf Registration Statement") providing for the registration and the sale on a continuous or delayed basis of all Registrable the Eligible Securities, pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the SEC (the "Shelf Registration"). The Company agrees to use its reasonable best efforts to cause such Shelf Registration Statement to become or be declared effective as soon as practicable but no later than 75 calendar days after the filing (the "75 Day Effective Date") and to keep such Shelf Registration continuously effective for a period ending on the occurrence of the earlier of: (x) the third anniversary of such Registration Demand and (y) notification by all of the requesting Holders that such Holders have sold all of the Eligible Securities owned by them. The Company further agrees to supplement or make amendments to the Shelf Registration Statement and the prospectus included therein (x) as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period set forth in the previous sentence and (y) as may be required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration or by the Securities Act or rules and regulations thereunder for shelf registration. The Company agrees to furnish to the Holders of the securities registered thereby copies of any such supplement or amendment (but excluding any periodic reports required to be filed with the SEC under the Exchange Act of 1934) so that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Initial Holder, or if the Initial Holder is no longer a Holder, the Holders, through the Representative(s), have a reasonable opportunity to comment thereon prior to its being used and/or filed with the SEC.
(ii) As promptly as specified by notice given by each such Holder to practicable after the Company within twenty receives a Registration Demand from a Holder or Holders pursuant to which a Holder is deemed to have elected to register Eligible Securities pursuant to an existing Shelf Registration Statement (20) days of a "Takedown"), the date the Demand Notice is given, and in each caseCompany shall, subject to the limitations Takedown Blackout Period described below, file a Prospectus with the SEC and otherwise comply with the Securities Act and all rules, regulations and instructions thereunder applicable to such Takedown. In the event that no Prospectus or other filing is required nor any other action necessitating the Company's participation is required to effect a sale of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible Eligible Securities pursuant to use a Form S-3 registration statementan effective Shelf Registration Statement filed pursuant to Section 2.1(c)(i), each selling Holder agrees to provide the Company receives a request from Holders of with at least ten percent three (10%3) Business Days' notice of the Registrable proposed sale (which may or may not include the amount of Eligible Securities then outstanding to be registered) pursuant to the effective Shelf Registration Statement; provided, however, that the Company file shall, subject to Section 2.3(g), have the right to postpone any such sale whether before or after the filing of the applicable Prospectus or Shelf Registration Statement for a Form S-3 registration statement with respect reasonable period of time not to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall exceed ninety (90) days (a "Takedown Blackout Period") if: (i) within ten the Company determines in its good faith judgment that it would, in connection with such sale, be required to disclose in such Registration Statement (10or any prospectus supplement to be used in connection therewith) days after the date such request is given, give a Demand Notice information not otherwise then required by law to all Holders other than the Initiating Holders be publicly disclosed and (ii) as soon as practicable, and in any event within forty-five either (45x) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it of Directors of the Company, such disclosure would be materially detrimental to adversely affect any material corporate development or business transaction contemplated by the Company and its stockholders for such registration statement to either become effective or remain effective, then (y) the Company has a bona fide purpose for preserving as confidential such information; provided further that the Takedown Blackout Period shall have earlier terminate upon the right to defer taking action with respect to completion or abandonment of the relevant corporate development or business transaction or upon public disclosure by the Company or public disclosure by the Company or public admission by the Company of such filing, information specified in (i) above.
(d) As promptly as practicable and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more in no event later than sixty (60) days after the request Company receives a Registration Demand electing to register Eligible Securities pursuant to this Section 2.1(d), the Company shall file with the SEC a Registration Statement, on any form that shall be available and appropriate for the sale of the Initiating Eligible Securities in accordance with the intended method of distribution thereof. The Company shall include in such Registration Statement all of the Eligible Securities of such requesting Holders is giventhat such Holders have requested to be included therein pursuant to Sections 2.1(a) and 2.1(b); provided, however, that that, if the Company may not invoke this right more than twice in any twelve (12) month period (which requested registration involves an underwritten offering, the Eligible Securities to be registered may be for consecutive sixty reduced if the managing underwriter delivers a notice (60a "Cutback Notice") day periods aggregating pursuant to one hundred twenty (120) daysSection 2.1(g); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) . The Company shall not use its reasonable best efforts to cause each such Registration Statement to be obligated declared effective (and to effectobtain acceleration of such effectiveness) as soon as practicable but no later than 75 days after filing such Registration Statement and to keep such Registration Statement continuously effective and usable for resale of such Eligible Securities, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the for a period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after from the date on which the SEC declares such Registration Statement effective date ofor such shorter period as is necessary to complete the distribution of the securities registered thereunder.
(e) The Initial Holder or, if the Initial Holder is not a Company-initiated registrationselling holder, the Representative(s) shall determine the method of distribution of Eligible Securities pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten offering, the investment banker or investment bankers and manager or managers that will administer such offering will be selected by the Initial Holder or, if the Initial Holder is not a selling holder, the Representative(s); provided that the Persons so selected shall be reasonably satisfactory to the Company.
(g) In the event that the proposed offering is an underwritten offering and includes securities to be offered for the account of the Company is actively employing (the "Company Shares"), the provisions of this Section 2.1(g) shall be applicable if the managing underwriter delivers a Cutback Notice stating that, in good faith commercially reasonable efforts its opinion, the aggregate number of shares of Eligible Common Stock, plus the Company Shares proposed to cause be sold therein, exceeds the maximum number of shares specified by the managing underwriter in such Cutback Notice that may be distributed without adversely affecting the price, timing or distribution of the Common Stock being distributed. If the managing underwriter delivers such Cutback Notice, the number of shares of Eligible Common Stock requested to be registered and Company Shares shall be reduced in the following order until the number of shares to be offered has been reduced to the maximum number of shares specified by the managing underwriter in the Cutback Notice: first, the Company Shares and second, the Eligible Common Stock in proportion to the respective number of shares of Eligible Common Stock that each Holder has requested to be registered.
(h) The Company will pay all Registration Expenses (as set forth in Section 3.3) in connection with a registration under this Section 2.1.
(i) No Registration Demand (other than a Takedown) may be made until the expiration of six (6) months following the completion of the distribution of the securities registered under any Registration Statement that has been filed and has become effective pursuant to a prior Registration Demand.
(j) A Registration Demand will not be deemed satisfied (and will not count for purposes of the limitations in Section 2.1(a)) (i) unless a registration statement with respect thereto has become effective and has been kept continuously effective for a period of at least 180 days (or such shorter period which shall terminate when all Eligible Securities covered by such registration statement to become effective; have been sold), (ii) if, after it has become effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Company SEC or other governmental agency or court for any reason not attributable to the selling holders participating in such registration and has effected two registrations pursuant to Section 2.1(a) not thereafter become effective, or (iii) if the Initiating Holders propose conditions to dispose closing specified in the relevant underwriting or agency agreement entered into in connection with such offering are not satisfied or waived, other than by reason of shares a breach of Registrable Securities that may be immediately registered such agreement by the selling holders participating in such offering or wilful failure on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate part of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing selling holders participating in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)offering.
Appears in 2 contracts
Sources: Registration Rights Agreement (Whwel Real Estate Lp), Registration Rights Agreement (Wellsford Real Properties Inc)
Demand Registration. (a) Form S-1 Demand. If the Company shall receive, at any time one hundred eighty after the earlier of (180i) days after the effective date of the registration statement for the IPOa Qualified IPO or (ii) October 14, the Company receives 2023, a written request from Holders of at least thirty-five percent (35%the record Holder(s) of a majority of the Registrable Securities shares of Preferred Stock then outstanding outstanding, including Common Stock issued on conversion of Preferred Stock, and the shares of Conversion Common Stock then outstanding, voting together (on a combined and as-if converted basis) (the “Initiating Holders”), that the Company file a Form S-1 registration statement with respect to at least thirty-five percent under the Securities Act (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million“Registration Request”), then the Company shall shall:
(i) within ten (10) 10 days after of the date receipt of the Registration Request, give written notice of such request to all Holders that such registration is given, give notice thereof to be effected (the “Demand Registration Notice”) to all Holders other than the Initiating Holders and ); and
(ii) use its best efforts to effect as soon as practicable, and in any event within sixty (60) 90 days after of the date such request is given by receipt of the Initiating HoldersRegistration Request, file a Form S-1 the registration statement under the Securities Act covering of all Registrable Securities that the Initiating Holders requested request to be registered in the Registration Request and any such additional Registrable Securities requested for which it has received written requests to be included in register by such registration by any other Holders, as specified by notice given by each such Holder to the Company Holders within twenty (20) 45 days after delivery of the date the Demand Notice is given, and in each caseRegistration Notice, subject to the limitations of Sections 2.1(c) and 2.3subsection 1.2(b).
(b) Form S-3 Demand. If at any time when it the Company is eligible required to use a Form S-3 registration statementS-1 (or similar forms promulgated after the date hereof), the Company receives a request from Holders of at least ten percent shall be obligated to (10%i) of proceed with filing the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect only if the registration to outstanding Registrable Securities of such Holders having an be effected pursuant to the Registration Request has anticipated aggregate gross offering price, net of Selling Expenses, proceeds of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders 10,000,000 and (ii) as soon as practicableprepare, file and in any event within forty-five cause to become effective, at the sole expense of the Company, no more than two (452) days registration statements on Form S-1 (or similar forms promulgated after the date hereof) pursuant to Registration Requests made under this Section 1.2. Once the Company has prepared, filed and caused to become effective two (2) registrations on Form S-1, at its sole expense, it shall still be obligated to comply with this Section 1.2, but the expense of any such registration shall be borne by the Holders participating in such registration.
(c) If the Initiating Holders intend to distribute the Registrable Securities covered by such request is given by means of an underwriting, they shall so advise the Company as a part of their Registration Request and the Company shall include such information in the Registration Notice. The underwriter will be selected by the Company and a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 1.2, file if the underwriter advises the participating Holders in writing that marketing factors require a Form S-3 registration statement under limitation of the Securities Act covering all number of shares to be underwritten, then the number of shares of Registrable Securities requested that may be included in the underwriting shall be allocated pro rata among all participating Holders according to the total amount of securities entitled to be included therein owned by such Holders; provided, however, that the number of shares of Registrable Securities to be included in such registration by any underwriting shall not be reduced unless all other Holders, as specified by notice given by each such Holder to securities are first entirely excluded from the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3underwriting.
(cd) Notwithstanding the foregoing obligationsforegoing, if the Company furnishes shall furnish to Holders requesting a registration statement pursuant to this Section 2.1 1.2 within thirty (30) days of the Registration Request a certificate signed by the Company’s chief executive officer President and Chief Executive Officer of the Company stating that (i) the Company pursuant to an action approved by the Board already has a present plan to commence preparation of a registration statement, other than a Special Registration Statement, and to file the same within ninety (90) days, or (ii) in the good faith judgment of the Board Board, it would be materially seriously detrimental to the Company and its stockholders for such registration statement to either become effective be filed on or remain effectivebefore the date filing would be required and it is therefore essential to defer the filing of such registration statement, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) 60 days after from the request date of the Initiating Holders is givencertificate required herein; provided, however, that the Company may not invoke utilize this right more than twice in any twelve (12) -month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationperiod.
(de) The In the event that the Holders of a majority of the Registrable Securities for which registration has been requested pursuant to this Section 1.2 determine for any reason not to proceed with a registration at any time before a registration statement has been declared effective by the Commission, and such registration statement, if theretofore filed with the Commission, is withdrawn with respect to the Registrable Securities covered thereby, and, unless the withdrawal is based on a material adverse change in the condition, business or prospects of the Company from that known to the Holders at the time of their registration request, the Holders of such Registrable Securities agree to bear their own expenses incurred in connection therewith and to reimburse the Company for the expenses incurred by it attributable to the registration of such Registrable Securities, and, if such Holders in fact so reimburse the Company, then the Holders of such Registrable Securities shall not be deemed to have exercised their right to require the Company to register Registrable Securities pursuant to this Section 1.2.
(f) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.1(a) 1.2:
(i) during the period that is sixty (60) days before the Company’s good faith estimate of starting with the date of filing of, and ending on a date that is one hundred eighty (180) 180 days after the effective date of, a registration filed in connection with the Company-initiated registration, ’s Qualified IPO of its Common Stock; provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective; or
(ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The 1.11 below.
(g) If, at the time a Registration Request is received by the Company, the Company has already determined to proceed with the actual preparation and filing of a registration statement under the Securities Act in connection with the Company’s proposed offer and sale for cash of its securities, the Registration Request shall not be obligated deemed to effect, or to take any action to effect, any registration have been given pursuant to Section 2.1(b) (A) during 1.3 rather than this Section 1.2, and the period that is thirty (30) days before the Company’s good faith estimate rights and obligations of the date of filing of, Holders and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts with respect to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement Registration Request shall be counted as “effected” for purposes of this governed by Section 2.1(d)1.3 hereof.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Intuity Medical, Inc.), Investors’ Rights Agreement (Intuity Medical, Inc.)
Demand Registration. (a) Form S-1 Demand. If Subject to the Transfer restrictions set forth in Sections 3.1 and 3.2, at any time during the period commencing as of the end of the Initial Share Holding Period and ending on the ten-year anniversary of the Closing Date, and, in the case of Silver Lake, TPG or August, after the Majority Stockholder has distributed Subject Shares pursuant to Section 3.3, upon the written request of any of the Majority Stockholder, TPG, Silver Lake or August (a “Demand Party”) requesting that the Company effect the registration under the Securities Act of all or part of such Demand Party’s Registrable Securities (a “Demand Registration”) and specifying the amount and intended method of disposition thereof, the Company will promptly give written notice of such requested registration to the Managing Registration Rights Holders (each of such Managing Registration Rights Holders will notify each of the Permitted Transferees of such Managing Registration Rights Holder that holds Registrable Securities) and other holders of securities entitled to notice of such registration and thereupon will, as expeditiously as reasonably possible, file a registration statement to effect the registration under the Securities Act of:
(i) such Registrable Securities which the Company has been so requested to register by the Demand Party;
(ii) the Registrable Securities of other Registration Rights Holders which the Company has been requested to register by written request given to the Company by the Managing Registration Rights Holders within 14 days after the giving of such written notice by the Company to the Managing Registration Rights Holders (which request shall specify the amount and intended method of disposition of such securities); all to the extent necessary to permit the disposition (in accordance with the intended method thereof as aforesaid) of the Registrable Securities and such other securities so to be registered; provided that the Company shall not be required to effect the registration of Registrable Securities (A) at the request of the Majority Stockholder on more than two (2) occasions, (B) at the request of Silver Lake on more than two (2) occasions, (C) at the request of TPG on more than two (2) occasions, or (D) at the request of August on more than one hundred eighty (1801) occasion; provided further, that the Company shall not be obligated to file a registration statement relating to any registration request under this Section 4.2(a):
(1) within a period of 180 days after the effective date of any other registration statement relating to any registration request under this Section 4.2 or relating to any registration statement referred to under Section 4.1 or Section 4.3 hereof; or
(2) if (x) the requested registration pursuant to this Section 4.2 involves a registration on a form other than a Form S-3 (or any successor to Form S-3), and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or
(3) if (x) the requested registration pursuant to this Section 4.2 involves an underwritten offering, and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $20,000,000; or
(4) if the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000; or
(5) if with respect thereto the managing underwriter, the SEC, the Securities Act, or the form on which the registration statement is to be filed, would require the conduct of a Special Audit, in which case the filing may be delayed until the completion of such Special Audit (and the Company shall, upon request of TPG, Silver Lake or August, as the case may be, use its commercially reasonable efforts to cause such Special Audit to be completed expeditiously and without unreasonable delay); or
(6) if the Company is in possession of material non-public information and the Board determines in good faith that disclosure of such information would not be in the best interests of the Company and its stockholders, in which case the filing of the registration statement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 120th day after receipt by the Company of the written request from the Majority Stockholder, TPG, Silver Lake or August, as the case may be, to register Registrable Securities under this Section 4.2(a); or
(7) if the Closing Shelf Registration Statement is then effective and available for the IPOsale and distribution of such Demand Party’s Registrable Securities in the manner specified in such request.
(b) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 4.2.
(c) A registration requested pursuant to this Article IV will not be deemed to have been effected unless the registration statement filed by the Company with the SEC in connection with such registration has been declared effective by the SEC; provided that, if, within 100 days after it has become effective, the Company receives a request from Holders offering of at least thirty-five percent (35%) Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the Registrable Securities SEC or other governmental agency or court, then outstanding that such registration will be deemed not to have been effected.
(d) If a requested registration pursuant to this Section 4.2 involves an underwritten offering and regardless of whether the Company file is registering any securities therein, the Board shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter.
(e) If a Form S-1 requested registration statement with respect pursuant to at least thirty-five percent (35%) of this Section 4.2 involves an underwritten offering and the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then managing underwriter advises the Company shall (i) within ten (10) days after in writing that, in its opinion, the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional number of Registrable Securities requested to be included in such registration by any other Holdersexceeds the number which can be sold in such offering, so as specified by notice given by each such Holder to be reasonably likely to have an adverse effect on the Company within twenty (20) days price, timing or distribution of the date the Demand Notice is given, and securities offered in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 millionoffering, then the Company shall (i) within ten (10) days after the date will include in such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date registration such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all number of Registrable Securities requested to be included in such registration by any other Holderswhich, as specified by notice given in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, which number shall be allocated pro rata among all such holders of Registrable Securities requesting to be included in such registration based on the relative number of Registrable Securities then held by each such Holder to holder of Registrable Securities. In the Company within twenty (20) days event that the number of the date the Demand Notice is givenRegistrable Securities and Shares of other holders, and in each case, subject case entitled to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action rights with respect to such filingShares requested to be included in such registration is less than the number which, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after in the request opinion of the Initiating Holders is given; providedmanaging underwriter, howevercan be sold, that the Company may not invoke this right more than twice include in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating such registration securities it proposes to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments sell for its own account or that up to the number of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effectsecurities that, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during in the period that is sixty (60) days before the Company’s good faith estimate opinion of the date of filing ofunderwriter, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may can be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)sold.
Appears in 2 contracts
Sources: Stockholders Agreement (Crystal Decisions Inc), Stockholders Agreement (Business Objects Sa)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives shall receive a written request (a “Demand Request”) from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding Invus Transferee Group that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities that owned by the Initiating Holders requested to be registered and Invus Transferee Group (or any additional Registrable Securities requested to be included in such registration by any other Holdersmember(s) thereof), as specified by notice given by each such Holder to then the Company within twenty (20) days of the date the Demand Notice is given, and in each caseshall, subject to the limitations of Sections 2.1(c) this Section 3.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities in accordance with the intended method of distribution thereof that the Invus Transferee Group, and 2.3any Piggyback Holders pursuant to their rights under Section 3.3, request to be registered, subject to the provisions of Section 3.2(c). The Invus Transferee Group shall have the right to make an unlimited number of Demand Requests.
(b) Form S-3 DemandIf the Invus Transferee Group (or any member(s) thereof) intends to distribute the Registrable Securities covered by its request by means of an underwritten public offering, it shall so advise the Company as a part of their request made pursuant to this Section 3.2 or any request pursuant to Section 3.4. If at The Invus Transferee Group shall have the right to select the investment bank or banks and managers to administer any time when it is eligible offering made in connection with a Demand Request, including the lead managing underwriter; provided that if the Invus Transferee Group declines to use a Form S-3 registration statementexercise such right, the Company receives a request from Holders of at least ten percent (10%shall select the investment bank or banks and managers to administer the offering, but the Invus Transferee Group shall continue to have such right pursuant to this Section 3.2(b) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3subsequent underwritten public offering.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental anything herein to the Company and its stockholders for such registration statement to either become effective or remain effectivecontrary, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any effect a registration pursuant to Section 2.1(a) 3.2 unless the Registrable Securities requested to be registered by the Invus Transferee Group, together with the Registrable Securities requested to be registered by any Piggyback Holders pursuant to Section 3.3, are reasonably expected to result in aggregate gross cash proceeds (i) during in the period that is sixty (60) days before the Company’s good faith estimate case of the date Initial Offering, in excess of filing of, and ending on a date that is one hundred eighty and fifty million dollars (180$150,000,000) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; and (ii) after in the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose case of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant subsequent to Section 2.1(b) the Initial Offering, fifty million dollars (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d$50,000,000).
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Blue Buffalo Pet Products, Inc.)
Demand Registration. (a) Form S-1 Demand. Subject to the conditions of this Section 3.1:
(i) If at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives shall receive a written request from the Series A Investor Holders of at least thirty-five forty percent (3540%) of the total Registrable Securities then outstanding and held by the Series A Investors ("Series A Investor Initiating Holders") that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities covering at least twenty percent (20%) of the Registrable Securities then held by the Series A Investors (or any lesser percentage if the anticipated aggregate offering price to the public would exceed $5,000,000), then the Company shall, within fifteen (15) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 3.1, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered.
(ii) If the Company shall receive a written request from the Series B Investor Holders of at least forty percent (40%) of the total Registrable Securities then outstanding and held by the Series B Investor Holders ("Series B Investor Initiating Holders") that the Company file a Form S-1 registration statement with respect to under the Securities Act covering the registration of Registrable Securities covering at least thirty-five twenty percent (3520%) of the Registrable Securities then outstanding in which held by the Series B Investors (or any lesser percentage if the anticipated aggregate offering price, net of Selling Expenses, price to the public would exceed $10 million5,000,000), then the Company shall shall, within fifteen (i) within ten (1015) days after of the date receipt thereof, give written notice of such request is given, give notice thereof (the “Demand Notice”) to all Holders other than Holders, and subject to the Initiating Holders and (ii) limitations of this Section 3.1, use its best efforts to effect, as soon as practicable, and in any event within sixty the registration under the Securities Act of all Registrable Securities that the Holders request to be registered.
(60iii) days after If the date such Company shall receive a written request is given by from ▇▇▇▇▇▇ ("▇▇▇▇▇▇ Initiating Holder") that the Initiating Holders, Company file a Form S-1 registration statement under the Securities Act covering the registration of Registrable Securities covering at least forty percent (40%) of the Common Stock issued to and held by ▇▇▇▇▇▇ in connection with the Merger (or any lesser percentage if the anticipated aggregate offering price to the public would exceed $5,000,000), then the Company shall, within fifteen (15) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 3.1, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Initiating Holders requested request to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3registered.
(biv) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives shall receive a written request from Holders of at least ten percent UA (10%"UA Initiating Holder") of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all the registration of Registrable Securities requested to be included in such registration covering at least forty percent (40%) of the Common Stock issued or issuable upon the exercise of the UA Warrant held by UA (or any other Holders, as specified by notice given by each such Holder lesser percentage if the anticipated aggregate offering price to the public would exceed $5,000,000), then the Company shall, within twenty fifteen (2015) days of the date the Demand Notice is givenreceipt thereof, give written notice of such request to all Holders, and in each case, subject to the limitations of Sections 2.1(c) and 2.3this Section 3.1, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered.
(cv) Notwithstanding If the foregoing obligations, Company shall receive a written request from a Founder ("Founder Initiating Holder") that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities covering at least forty percent (40%) of the Common Stock held by Founder (or any lesser percentage if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental anticipated aggregate offering price to the Company and its stockholders for such registration statement to either become effective or remain effectivepublic would exceed $5,000,000), then the Company shall have shall, within fifteen (15) days of the right receipt thereof, give written notice of such request to defer taking action with respect to such filingall Holders, and any time periods with respect subject to filing or effectiveness thereof shall the limitations of this Section 3.1, use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be tolled correspondingly, for a period of not more than sixty registered.
(60b) days after the request of If the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d3.1, the term "Initiating Holder" shall mean a Series A Investor Initiating Holder, a Series B Investor Initiating Holder, the ▇▇▇▇▇▇ Initiating Holder, the UA Initiating Holder or the Founder Initiating Holder, as applicable) until intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 3.1, and the Company shall include such time as information in the applicable written notice referred to in Section 3.1(a). In such event, the right of any Holder to include its Registrable Securities in such registration statement has been declared effective shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by the SEC, unless a majority in interest of the Initiating Holders withdraw and such Holder) to the extent provided herein. All Holders proposing to distribute their request securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such registration, elect not to pay underwriting by a majority in interest of the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in Initiating Holders (which case such withdrawn registration statement underwriter or underwriters shall be counted as “effected” for purposes reasonably acceptable to the Company). In the event the underwriter determines in good faith that marketing factors require a limitation of this the number of shares to be underwritten, the number of shares that may be included in the underwriting shall be allocated among the Holders in accordance with Section 2.1(d)3.2. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Buy Com Inc), Investors' Rights Agreement (Buy Com Inc)
Demand Registration. (ai) Form S-1 Demand. If If, at any time one hundred eighty (180) at least 180 days after the effective closing date of the registration statement for the IPO, the Company receives a request from the Initiating Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent covering either (35%x) the potential sale of all or a portion of the Registrable Securities then outstanding in which the with an anticipated aggregate offering price, net price (excluding the offering price of Selling Expenses, would exceed any shares subject to an over-allotment option) of at least $10 million7,500,000 or (y) all of the Registrable Securities then held by a Comprehensive Rights Holder whose rights under this Agreement have not terminated pursuant to Section 11, then the Company shall shall: (iA) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders Holders; and (iiB) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, use its reasonable best efforts to file and make effective a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(cSection 2(a)(iii) and 2.3Section 3.
(bii) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from the Initiating Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding covering either (x) the potential sale of all or a portion of the Registrable Securities of such Holders having then outstanding with an anticipated aggregate offering price, net price (excluding the offering price of Selling Expenses, any shares subject to an over-allotment option) of at least $5 million3,750,000 or (y) all of the Registrable Securities then held by a Comprehensive Rights Holder whose rights under this Agreement have not terminated pursuant to Section 11, then the Company shall shall: (iA) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders Holders; and (iiB) as soon as practicable, and in any event within forty-five (45) 45 days after the date such request is given by the Initiating Holders, file and make effective a Form S-3 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(cSection 2(a)(iii) and 2.3Section 3.
(ciii) Notwithstanding the foregoing obligations, if the Company furnishes to Initiating Holders requesting a registration pursuant to this Section 2.1 2(a) a certificate signed by the Company’s chief executive officer Chief Executive Officer stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (A) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company, (B) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, or (C) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) 120 days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice once in any twelve (12) consecutive twelve-month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days)period; and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such 120-day period other than an Excluded RegistrationRegistrations.
(div) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a2(a) (iA) after the Company has effected a total of four registrations pursuant thereto, or (B) if the Company has effected a registration pursuant to Section 2(a) within the six-month period immediately preceding the date of such request. The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2(a)(i) (A) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) 180 days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) , or (iiiB) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b2(a)(ii). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A2(a)(ii) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such requesteffective. A registration shall not be counted as “effected” for purposes of this Section 2.1(d2(a)(iv) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.66, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d2(a)(iv).
Appears in 2 contracts
Sources: Registration Rights Agreement (ACM Research, Inc.), Registration Rights Agreement (ACM Research, Inc.)
Demand Registration. (a) Form S-1 Demand. If the Company shall receive a request (each such request, an “Investor Request” and each requesting Investor, the “Requesting Investor”) from either (i) the Holders of a majority of the Series D Shares, Series C-2 Shares, Series C-1 Shares and Series C Shares, together as a single class on an as-converted basis, at any time one hundred eighty after the earlier of (180x) 60 days after the effective date Initial Closing and (y) 180 days after the completion of an Initial Public Offering, or (ii) the Holders of a majority of the registration statement for the IPOSeries B Shares, the Company receives together as a request from Holders of single class on an as-converted basis, at least thirty-five percent 180 days after the completion of an Investor Request initiated by the Holders referred to in (35%) of the Registrable Securities then outstanding i), in each case, that the Company file a Form S-1 registration statement under the Securities Act with respect to at least thirty-five percent (35%) the proposed sale by such Requesting Investor of all or part of the Registrable Securities then outstanding in which owned by such Requesting Investor. Promptly after receipt of the anticipated aggregate offering priceInvestor Request, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is givenshall, subject to Section 14, give written notice thereof (the “Demand NoticeNotice of Investor Request”) of such Investor Request to all Holders other than and, subject to the Initiating Holders and limitations of Section 2(c) below, shall file (ii) as soon expeditiously as practicable, practicable and in any event within sixty (60) days after the date such request is given by the Initiating Holdersof its receipt) and use its best efforts to effect, file a Form S-1 registration statement under the Securities Act covering with respect to all Registrable Securities that the Initiating Holders request to be registered (such requesting Holders together with the Requesting Investors, the “Registering Shareholders”) within ten (10) business days of the receipt the applicable Holder of the Notice of Investor Request (delivered in accordance with Section 22) ; provided, however, that no Investor Request shall be effected from Holders referred to in clause (ii) above if the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Shareholders in such Investor Request are less than $20,000,000 (unless such Registrable Securities identified in the Investor Request constitute all remaining Registrable Securities held by the Registering Shareholders). All requests made pursuant to this Section 2(a) will specify the aggregate number of the Registrable Securities to be registered and will also specify the intended methods of disposition thereof.
(b) If the Requesting Investors intend to distribute the Registrable Securities covered by their written request by means of an underwriting, they shall so advise the Company as a part of their Investor Request and the Company shall include such information in the Notice of Investor Request. In such event, the right of any additional Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. The Holders of a majority in interest of the Registrable Securities participating in the underwriting, in consultation with the Company, shall select the managing underwriter or underwriters in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 5(f)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected; provided, however, that (i) no Holder (or any of their assignees) shall be required to make any representations, warranties or indemnities except as they relate to such Holder’s ownership of shares and authority to enter into the underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the net proceeds from the offering received by such Holder, and (ii) each Holder shall be required to deliver all questionnaires, powers of attorney, escrow and custody agreements, legal opinions and other documents customarily required under the terms of such underwriting agreement. Notwithstanding any other provision of this Section 2, if the underwriter advises the Company and the Requesting Investor that, in its view, the number of shares of Registrable Securities requested to be included in such registration by (including any other Holders, as specified by notice given by each such Holder to securities that the Company within twenty proposes to be included that are not Registrable Securities) 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 (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement“Maximum Offering Size”), the Company receives a request from Holders of at least ten percent (10%) of shall include in such registration, in the Registrable Securities then outstanding that priority order listed below, up to the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall Maximum Offering Size:
(i) within ten (10) days after the date such request is givenfirst, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be registered by the Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Registering Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by any other Holderseach); and
(ii) second, as specified all Registrable Securities proposed to be registered by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3Company.
(c) The Company shall be obligated to effect only eight (8) registrations pursuant to an Investor Request under Section 2 (it being understood that the Holders of a majority of the Series D Shares, Series C-2 Shares, Series C-1 Shares and Series C Shares, together as a single class on an as-converted basis, shall be entitled to request six (6) such registrations and the Holders of a majority of the Series B Shares, together as a single class on an as-converted basis, shall be entitled to request two (2) such registrations); provided, however, that in each case the Company shall be obligated to effect as many registrations as may be requested by Holders of Registrable Securities pursuant to any Investor Request in the event and so long as registration pursuant to Form S-3 or any similar “short-form” registration statement is available. The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 3 if the Company has effected two registrations pursuant to Section 3 within the twelve (12) month period immediately preceding the date of such request.
(d) At any time prior to the effective date of the registration statement relating to an Investor Request, the Requesting Investor may revoke such request for a registration, without liability to any of the other Holders, by providing a notice to the Company revoking such request.
(e) A registration under this Section 2 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 180 days (or such shorter period in which all Registrable Securities of the Holders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a registration pursuant to an Investor Request 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 SEC or other governmental agency or court, or (2) less than sixty-six and two-thirds percent (662/3%) of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the number of Registrable Securities of the Requesting Shareholders included in the registration statement is reduced in accordance with Section 2(b) such that less than sixty-six and two-thirds percent (662/3%) of the Registrable Securities of the Registering Shareholders sought to be included in such registration are included.
(f) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 2 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board Company’s board of directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders Requesting Investors is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days)period; and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationperiod.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 2 contracts
Sources: Registration Rights Agreement (OptiNose, Inc.), Registration Rights Agreement (OptiNose, Inc.)
Demand Registration. (a) Form S-1 Demand. If the Company shall receive at any time one hundred eighty after the earlier of (180i) three years from the date hereof and (ii) 180 days after the effective date of the registration statement for the an initial public offering of its Common Stock ("IPO, the Company receives ") a written request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 millionInitiating Holder(s), then the Company shall (i) shall, within ten (10) 20 business days after of the date receipt of such written request, give written acknowledgment of such request is given, give notice thereof (the “Demand Notice”"Request Acknowledgment") to all Holders other than the Initiating Holders Holders, and (ii) use its best efforts to effect, as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering of all Registrable Securities that the Initiating then owned of record by all Holders requested and which such Holders request to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by written notice given by each such Holder Holders to the Company within twenty (20) 20 days after receipt of the date Request Acknowledgment; provided, however, that the Demand Notice is givenCompany shall not be obligated to effect any such registration, and in each case, subject qualification or compliance pursuant to the limitations of Sections 2.1(c) and 2.3.this Section 1.3:
(bi) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, if the Company receives a request from Holders of at least ten percent (10%) aggregate value of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect proposed to outstanding Registrable Securities of be sold by such Holders having an anticipated aggregate in such offering price, net of Selling Expenses, of at least is less than $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and 1,000,000;
(ii) if such offering would (y) require disclosure of material nonpublic information that the Board of Directors of the Company determines in good faith would be in the best interests of the Company not to disclose or (z) have a material adverse effect (as soon as practicable, and in any event within forty-five (45) days after the date such request is given determined by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included Board of Directors in such registration by any other Holders, as specified by notice given by each such Holder to good faith) on the Company within twenty (20) days or its shareholders in relation to any financing, acquisition, corporate reorganization or other material transaction actively pursued by the Board of Directors of the date Company, involving the Demand Notice is givenCompany or any of its affiliates, and in each casewhich event, subject to in the limitations case of Sections 2.1(cboth (y) and 2.3.
(c) Notwithstanding the foregoing obligationsz), if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and the filing of the registration statement no more than once during any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, 12-month period for a period of not more than sixty (60) 120 days after receipt of the request of the Initiating such Holders is given; provided, however, that under this Section 1.3 (the Company may not invoke this right more than twice in must furnish to the Holders requesting registration a certificate signed by its Chairman of the Board of Directors, Chief Executive Officer or Chief Financial Officer certifying as to any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) dayssuch determination made by the Board of Directors); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.;
(diii) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) if the request is made during the period that is sixty (60) days before starting with the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) 90 days after following the effective date of, a registration statement pertaining to an underwritten public offering of securities for the account of the Company-initiated registration, provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective; or
(iiiv) after The Company is obligated to effect only one such registration pursuant to this Section 1.3 (which registration must be declared or ordered effective).
(b) If Initiating Holder(s) submit a registration request under this Section 1.3 and intend to distribute the Registrable Securities covered by such request by means of an underwriting (an "Underwritten Offering"), then the Initiating Holder(s) shall so advise the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if as a part of the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to this Section 2.1(b1.3 and the Company shall include such information in the written notice referred to in Section 1.3(a). The Company In such event, the right of Investor and the other Holders to include their Registrable Securities in such registration shall not be obligated conditioned upon such Holders' participation in such underwriting and the inclusion of the Holders' Registrable Securities in the underwriting to effectthe extent provided herein. If Investor or the other Holders propose to distribute their securities through such underwriting, they shall enter into an underwriting agreement in customary form with the managing underwriter or to take any action to effect, any registration pursuant to Section 2.1(bunderwriters selected for such underwriting by a majority in interest of the Initiating Holder(s) (A) during the period that is thirty (30) days before from a list of three nationally-recognized underwriters proposed by the Company’s good faith estimate . Any Registrable Securities excluded and withdrawn from such underwriting shall be withdrawn from the registration. If the representative of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing such underwriters determines in good faith commercially reasonable efforts that marketing factors require a limitation of the number of shares to cause such be underwritten and so advises Investor and the Holders in writing, the Registrable Securities to be sold by Investor shall be the last securities (including any other registrable securities of any other shareholder with registration statement rights) to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for excluded from such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Data Return Corp), Investor's Rights Agreement (Data Return Corp)
Demand Registration. (a) Form S-1 Demand. If at If, on any time one hundred eighty (180) days after the effective date of the registration statement for the IPOtwo occasions, the Company receives shall receive from any of (x) the Investors, (y) ▇. ▇▇▇▇▇ or (z) ▇. ▇▇▇▇▇ a written request from Holders (in any such case, the Demand Holder(s) providing such request is hereinafter sometimes referred to as an "Initiating Holder(s)") that the Company effect the registration of Registrable Securities or Other Registrable Securities, as the case may be, representing at least thirtytwenty-five percent (3525%) of the Registrable Securities or Other Registrable Securities, as the case may be, then outstanding that held by and issuable to (1) the Company file Investors (or their successors or assignees) if the Initiating Holder is an Investor (or a Form S-1 registration statement with respect successor or assignee of an Investor), (2) ▇. ▇▇▇▇▇ (or his successors or assignees) if the Initiating Holder is ▇. ▇▇▇▇▇ (or his successors or assignees), or (3) ▇. ▇▇▇▇▇ (or his successors or assignees) if the Initiating Holder is ▇. ▇▇▇▇▇ (or his successors or assignees) (or any lesser percentage if the reasonably anticipated aggregate price to at least thirty-five percent (35%) the public of the Registrable Securities then outstanding or Other Registrable Securities, as applicable, to be included in which the anticipated aggregate offering price, net of Selling Expenses, such registration by such Demand Holder would exceed $10 million5,000,000) in connection with a firm commitment underwriting by a nationally recognized Underwriter selected by such Initiating Holder(s) and reasonably acceptable to the Company, then the Company shall shall:
(i) within ten promptly (10and in no event less than 30 days before the anticipated filing date of such registration statement) days after give written notice of the date such request is given, give notice thereof (the “Demand Notice”) proposed registration to all Holders other than the Initiating Holders and Holders; and
(ii) as soon as practicable, use all of its commercially reasonable best efforts to effect such registration as may be so requested and as would permit or facilitate the sale and distribution of such portion of such Registrable Securities or Other Registrable Securities, as applicable, as are specified in any event such request, together with such portion of the Registrable Securities, Other Registrable Securities and Make Systems Registrable Securities of Holders joining in such request as are specified in a written request by such Holder(s) given within sixty (60) 30 days after receipt of such written notice from the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3Company.
(b) Form S-3 Demand. If at The right of any time when it is eligible Holder to use a Form S-3 registration statementpursuant to this Section 2 shall be conditioned upon such Holder's participation, and the inclusion of such Holder's Registrable Securities, Other Registrable Securities or Make Systems Registrable Securities, in the underwriting (unless otherwise mutually agreed by such Holder, the Company receives Underwriter and a request from Holders majority in interest of at least ten percent (10%the Initiating Holder(s)) to the extent provided herein. A Holder may elect to include in such underwriting all or a part of the Registrable Securities, Other Registrable Securities then outstanding or Make Systems Registrable Securities it holds.
(c) The Company shall, together with all Holders of Registrable Securities, Other Registrable Securities and Make Systems Registrable Securities proposing to distribute their securities through such underwriting, enter into an underwriting agreement in customary form with the Underwriter.
(d) Notwithstanding any other provision of this Section 2, if the Underwriter advises the Initiating Holder(s) in writing that the Company file a Form S-3 inclusion in the subject registration statement with respect to outstanding of Registrable Securities, Other Registrable Securities or Make Systems Registrable Securities held by Holders other than Initiating Holder(s) would limit the number of such Holders having an anticipated aggregate Registrable Securities or Other Registrable Securities sought to be included by the Initiating Holder(s) or reduce the offering price, net of Selling Expenses, of at least $5 millionprice thereof, then the Company shall (i) within ten (10) days after the date such request is givenRegistrable Securities, give a Demand Notice to all Other Registrable Securities and Make Systems Registrable Securities held by Holders other than the Initiating Holders and (iiHolder(s) shall be excluded from such registration to the extent required by such limitation, in proportion, as soon nearly as practicable, and in any event within forty-five (45) days after to the date such request is given by respective number of shares of Common Stock they held at the time the Initiating HoldersHolder(s) provided the initial written request pursuant to this Section 2. No Registrable Securities, file a Form S-3 registration statement under the Securities Act covering all Other Registrable Securities requested to or Make Systems Registrable Securities so excluded from the underwriting by reason of the Underwriter's above marketing limitation shall be included in such registration registration. If any Holder of Registrable Securities, Other Registrable Securities or Make Systems Registrable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by any other Holders, as specified by written notice given by each such Holder to the Company, the Underwriter and the Initiating Holder(s). The securities so withdrawn shall also be withdrawn from registration. If the Underwriter has not limited the number of Registrable Securities, Other Registrable Securities and Make Systems Registrable Securities to be underwritten, the Company within twenty (20) days may include its securities for its own account in such registration if the Underwriter so agrees and if the number of the date the Demand Notice is givenRegistrable Securities, Other Registrable Securities and Make Systems Registrable Securities which would otherwise have been included in each case, subject to the limitations of Sections 2.1(c) such registration and 2.3underwriting will not thereby be limited.
(ce) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a No registration pursuant to this Section 2.1 a certificate signed initiated by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that hereunder shall count as a registration under this Section 2 unless and until the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating has incurred expenses equal to one hundred twenty (120) days); and provided further that at least $20,000 related to the Company shall not register any securities or instruments for its own account or that preparation of any other stockholder during such period other than an Excluded Registrationregistration.
(df) The Company shall not be obligated required to effect, or to take any action to effect, effect any registration pursuant to under this Section 2.1(a) 2 if (i) during the period Company is, at the time at which it receives any such request by an Initiating Holder, conducting or, has before receipt of such request, notified the Holders that it had planned, within 60 days of receipt by the Company of such request, to conduct an offering of its securities and the Company reasonably believes that such offering would be adversely affected by the requested registration, (ii) such request is sixty (60) days before received by the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days Company within three months after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such of any other registration statement relating to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or Company's securities, (iii) if the Initiating Holders propose filing of the registration statement would require the Company to dispose furnish audited financial statements customarily prepared at the end of shares its fiscal year other than in respect of Registrable Securities that may be immediately registered on Form S-3 pursuant such fiscal year, or (iv) the filing of the registration statement would require the Company to a request made pursuant to Section 2.1(b). furnish unaudited financial statements customarily prepared at the end of its fiscal quarters other than in respect of its regularly reported interim quarterly periods.
(g) The Company shall not be obligated to effect, or to take any action to effect, effect any registration pursuant to under this Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) 2 within 60 days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of receiving another such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 2 contracts
Sources: Registration Rights Agreement (Opnet Technologies Inc), Registration Rights Agreement (Opnet Technologies Inc)
Demand Registration. (ai) Form S-1 Demand. If Subject to the terms and conditions of this Agreement (including Section 2(b)(iii)), at any time one hundred eighty (180) days on or after the effective date earlier to occur of (A) the second (2nd) anniversary of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders Effective Date and (iiB) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective completion of the Initial Public Offering, upon written notice to the Company (a “Demand Notice”) delivered by (x) Holders beneficially owning not less than ten percent (10%) of the then outstanding shares of Company Common Stock in the aggregate or (y) a Holder that, together with its Affiliates, is both a Ten Percent Holder as of the date ofof this Agreement and could reasonably be considered an “Affiliate” (disregarding the proviso in the first sentence of the definition thereof) of the Company as of the date of such Demand Notice (an “Affiliated Holder”), which for the avoidance of doubt shall include any Holder with respect to which there is a Company-initiated registrationdirector serving on the Board who was appointed by, provided or is otherwise employed by or affiliated with, such Holder or its Affiliates (each of the foregoing being referred to as the “Initiating Holders”) at any time requesting that the Company effect the registration (a “Demand Registration”) under the Securities Act of any or all of the Registrable Securities held by such Holders, the Company shall promptly (but in any event, not later than five (5) Business Days following the Company’s receipt of such Demand Notice) give written notice of the receipt of such Demand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Company shall promptly file the appropriate registration statement (the “Demand Registration Statement”) and use its reasonable best efforts to effect, at the earliest practicable date, the registration under the Securities Act and under the applicable state securities laws of (1) the Registrable Securities which the Company has been so requested to register by the Initiating Holders in the Demand Notice, and (2) all other Registrable Securities which the Company has been requested to register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Company within ten (10) Business Days after the giving of such written notice by the Company, in each case subject to Section 2(b)(v), all to the extent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities to be so registered.
(ii) The Company may effect any requested Demand Registration using Form S-3 whenever the Company is actively employing eligible to register for resale the Registrable Securities on Form S-3 (unless the Initiating Holder(s) or the managing underwriter(s) of such offering requests the Company to use a Form S-1 in good faith commercially order to sell all of the Registrable Securities requested to be sold). Subject to the terms and conditions of this Agreement (including Section 2(b)(iii)), for so long as the Company is eligible to register for resale the Registrable Securities on Form S-3, each Ten Percent Holder shall have the right to request an unlimited number of Demand Registrations using Form S-3, which shall not constitute a Demand Registration for purposes of determining the number of Demand Registrations limited under Section 2(b)(iii)(B) below.
(iii) Notwithstanding anything herein to the contrary, (A) the Company shall only be required to comply with a Demand Notice requesting that the Company conduct an Initial Public Offering when delivered by Holders of 25% or more of the outstanding shares of Company Common Stock, and (B) the Company shall only be required to (1) effect two Demand Registrations in any 6 month period, (2) effect a total of not more than eight Demand Registrations by (x) Holders beneficially owning not less than 10% of the outstanding shares of the Company Common Stock in the aggregate and (y) Affiliated Holders, and an additional three Demand Registrations by each Ten Percent Holder throughout the term of this Agreement, and (3) comply with a request for a Demand Registration (other than a request that the Company conduct an Initial Public Offering) if the Initiating Holders, together with all other Demand Eligible Holders that request Registrable Securities be included in the Demand Registration pursuant to Section 2(b)(i), are requesting the registration of Registrable Securities, which is reasonably expected to result in aggregate gross proceeds in excess of $50 million. In connection with a Demand Notice requesting that the Company conduct an Initial Public Offering, the Company shall use its reasonable best efforts to cause the Company Common Stock to be listed on the New York Stock Exchange or The Nasdaq Global Market or any successor national securities exchange.
(iv) The Company shall use its reasonable best efforts to keep the Demand Registration Statement continuously effective under the Securities Act for the period of time necessary for the underwriters or Holders to sell all the Registrable Securities covered by such Demand Registration Statement or such shorter period which will terminate when all Registrable Securities covered by such Demand Registration Statement have been sold pursuant thereto (including, if necessary, by filing with the Commission a 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, any state securities or “blue sky” laws, or any other rules and regulations thereunder) (the “Effectiveness Period”). A Demand Registration requested pursuant to this Section 2(b) shall not be deemed to have been effected (A) if the Registration Statement is withdrawn without becoming effective, (B) if the Registration Statement does not remain effective in compliance with the provisions of the Securities Act and the laws of any state or other jurisdiction applicable to the disposition of the Registrable Securities covered by such Registration Statement for the Effectiveness Period, (C) if, after it has become effective, such Registration Statement is subject to any stop order, injunction or other order or requirement of the Commission or other governmental or regulatory agency or court for any reason other than a violation of applicable law solely by any selling Holder and has not thereafter become effective, (D) in the event of an underwritten offering, if the conditions to closing specified in the underwriting agreement entered into in connection with such registration statement to become effective; are not satisfied or waived other than by reason of some wrongful act or omission by an Initiating Holder, (iiE) after if the Company has effected two registrations pursuant does not include in the applicable Registration Statement any Registrable Securities held by a Holder that is required by the terms hereof to Section 2.1(a) or be included in such Registration Statement, (iiiF) if the Initiating Holders propose and Demand Eligible Holders have not been able to dispose sell at least 75% of the Registrable Securities that they have requested to sell in the Demand Notice or Demand Eligible Holder Request, or (G) in the case of an Initial Public Offering only, if the Commission has indicated that all of its comments on the Registration Statement have been cleared and the executive officers of the Company have participated in the related roadshow but the Registration Statement does not thereafter become effective.
(v) Notwithstanding any other provision of this Section 2(b), if (A) the Initiating Holders intend to distribute the Registrable Securities covered by a Demand Registration by means of an underwritten offering and (B) the managing underwriters advise the Company and the Initiating Holders that in their reasonable view, or, if such managing underwriters are unwilling to so advise the Company and the Initiating Holders, if the Company concludes after consultation with such managing underwriters and the Holders of Registrable Securities proposed to be included in such offering that in the Company’s reasonable view, the number of shares of Company Common Stock proposed to be included in such offering (including Registrable Securities requested by Holders to be included in such offering and any securities that may the Company or any other Person proposes to be immediately registered included that are not Registrable Securities) exceeds the number of shares of Company Common Stock which can be sold in an orderly manner in such offering within a price range acceptable to the Holders of a majority of the Registrable Securities requested to be included in such Demand Registration, then the Company shall so advise all Initiating Holders and Demand Eligible Holders with Registrable Securities proposed to be included in such underwritten offering, and shall include in such offering the number of shares of Company Common Stock which can be so sold in the following order of priority: (1) first, the Registrable Securities requested to be included in such underwritten offering by the Initiating Holders and the Demand Eligible Holders, which in the view of such underwriters or the Company, as applicable, can be sold in an orderly manner within the price range of such offering, pro rata among such Initiating Holders and Demand Eligible Holders on Form S-3 the basis of the number of Registrable Securities requested to be included therein by each such Initiating Holder and Demand Eligible Holder, and (2) second, Other Registrable Securities requested to be included in such underwritten offering to the extent permitted hereunder pro rata among the respective holders of such Other Registrable Securities on the basis of the number of securities requested to be included therein by each such holder.
(vi) The determination of whether any offering of Registrable Securities pursuant to a request Demand Registration will be an underwritten offering shall be made pursuant in the sole discretion of the Holders of a majority of the Registrable Securities included in such underwritten offering, and such Holders of a majority of the Registrable Securities shall have the right to Section 2.1(b). The Company (A) determine the plan of distribution, including the price at which the Registrable Securities are to be sold and the underwriting commissions, discounts and fees, and (B) select the investment banker(s) and manager(s) to administer the offering (which shall consist of one (1) or more reputable nationally recognized investment banks, subject to the Company’s approval (which shall not be obligated unreasonably withheld, conditioned or delayed)) and one (1) firm of counsel to effectrepresent all of the Holders (along with any reasonably necessary local counsel), or in connection with such Demand Registration; provided, that the Company shall select such investment banker(s), manager(s) and counsel (including local counsel) if such Holders of such majority cannot so agree on the same within a reasonable time period.
(vii) Any Holder whose Registrable Securities were to take be included in any action to effect, any such registration pursuant to Section 2.1(b2(b) may elect to withdraw any or all of its Registrable Securities therefrom, without prejudice to the rights of any such Holder or Holders to include Registrable Securities in any future registration (A) during or registrations), by written notice to the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending Company delivered on a date that is ninety (90) days after or prior to the effective date of, a Company-initiated registration, provided that of the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)relevant Demand Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (MPM Holdings Inc.)
Demand Registration. (a) Form S-1 Demand. If (i) Provided that the Company does not have the Registration Statement filed pursuant to Section 2 effective and usable to such Holder or group of Holders requesting a Demand Registration under this Section, at any time one hundred eighty after the date that the Company becomes a registrant under the Exchange Act, any Holder or group of Holders holding, in the aggregate, ten percent (18010%) days after or more of the Registrable Securities issued and outstanding immediately following the effective date of the registration statement for Plan (the IPO“Initial Outstanding Amount”), shall have the right, by written notice given to the Company receives (a “Demand Notice”), to request from Holders the Company to register under and in accordance with the provisions of at least thirty-five percent (35%) the Securities Act all or any portion of the Registrable Securities then outstanding designated by such Holder(s); provided, however, that (x) the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of registered constitute at least ten percent (10%) of the Initial Outstanding Amount, and (y) prior to the time the Company is eligible to use Form S-3 for the registration of Registrable Securities then outstanding for resale, such Holder(s), in the aggregate, shall only be entitled to three (3) Demand Registrations pursuant to the provisions of this Section 3(a)(i) unless any Demand Registration does not become effective or is not maintained in effect for the respective periods set forth in Section 3(c), in which case the relevant Holder(s) will be entitled to an additional Demand Registration pursuant hereto. Following the time that the Company file a becomes eligible for use of Form S-3 registration statement with respect to outstanding Registrable Securities (or any successor form), any Holder or group of such Holders having an anticipated aggregate offering priceholding, net of Selling Expensesin the aggregate, of at least $5 million, then the Company shall (i) within ten percent (10%) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days or more of the date the Demand Notice is givenInitial Outstanding Amount, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action request the Company to register under and in accordance with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request provisions of the Initiating Holders is givenSecurities Act all or any portion of the Registrable Securities designated by such Holder(s); provided, however, that such Registrable Securities represent at least ten percent (10%) of the Company may not invoke this right Initial Outstanding Amount, provided, however, that there shall be no more than twice in any twelve five (125) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration Demand Registrations pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tronox Inc), Equity Commitment Agreement (Tronox Inc)
Demand Registration. (a) Form S-1 Demand. If Subject to the restrictions set forth below, if at any time one hundred eighty (180) days after the effective date consummation of the registration statement for the IPOinitial Business Combination, the Company receives a request shall receive from the Holders of (the "Requesting Holders") owning at least thirtytwenty-five percent (3525%) of the then outstanding shares of Registrable Securities then outstanding that as of the Company file date of the request, a Form S-1 registration statement with respect written request to register at least thirty-five fifteen percent (3515%) of the aggregate number of Registrable Securities then outstanding in which owned by all of the anticipated aggregate offering price, net Requesting Holders as of Selling Expenses, would exceed $10 millionthe date of such request, then the Company shall (i) will give notice of such request to all Holders within ten (10) days after the date of receiving such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) shall effect as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon thereafter as practicable, and in any event within forty-five (45) days after of the date receipt of such request is given by request, the Initiating Holders, file a Form S-3 registration statement Registration under the Securities Act covering of all Registrable Securities requested which any Holder requests to be included registered except as provided in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b)2.03 below. The Company shall not be obligated to effect, or to take any action to effect, any registration such Registration pursuant to this Section 2.1(b2.01:
(a) (A) during During the period that is thirty starting with the date sixty (3060) days before prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date that is ninety one hundred eighty (90180) days after the effective date of, a Company-initiated registration, Registration; provided that the Company is has delivered notice of such Company-initiated Registration to the Holders prior to its receipt of the Holders' written request for a Demand Registration and it continues to actively employing employ in good faith commercially all reasonable efforts to cause such registration statement Registration Statement to become effective; or
(b) if the Holders have requested an Underwritten Registration, the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or
(c) if in the good faith judgment of the Board, such Registration would be seriously detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing (except as provided in subparagraph (a) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period. Notwithstanding the foregoing, the Company shall ensure that no such Registration shall become effective with respect to any Registrable Securities subject to an applicable Lock-up Period and/or Warrant Exercise Restriction until after the expiration of the applicable Lock-up Period and/or Warrant Exercise Restriction, as the case may be. Furthermore, the Company shall not be required to effect more than three (3) Registrations, which may be either Long-Form Registrations or Short-Form Registrations, under this Section 2.01 on behalf of the Holders; provided, however, that a Registration shall not be counted for such purposes unless such Long-Form Registration has become effective and all of the Registrable Securities requested by the Requesting Holders to be registered on behalf of the Requesting Holders in such Long-Form Registration have been sold, in accordance with Section 3.01(a) of this Agreement; and provided, further, however, that the Company will not be obligated to effect any such Short-Form Registration:
(Ba) if Form S-3 is not available for such offering;
(b) if in the good faith judgment of the Board, such Registration would be seriously detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing (except as provided in subparagraph (a) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period;
(c) if the Company has effected two registrations pursuant to Section 2.1(bone (1) Short-Form Registration within the twelve six (126) month period immediately preceding prior to the date of current request for Short-Form Registration; or
(d) if the Registrable Securities to be covered by such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6do not, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)the aggregate, exceed $500,000.
Appears in 2 contracts
Sources: Registration Rights Agreement (National Energy Resources Acquisition CO), Registration Rights Agreement (National Energy Resources Acquisition CO)
Demand Registration. (a) Form S-1 Demand. If at any time following the second anniversary of the date of this Agreement, the Company shall receive either—
(i) in the event there has not been the First Public Offering, a request from at least two (2) Initial Standby Purchasers that are not Affiliates of each other (but regarding affiliated Initial Standby Purchasers as a single Initial Standby Purchaser for these purposes) that hold in the aggregate fifteen percent (15%) or more of the then outstanding Common Stock, with at least two (2) of such Initial Standby Purchasers holding, individually, at least five percent (5%) or more of the then outstanding Common Stock, or
(ii) in the event there has been the First Public Offering,
(1) a request from one hundred eighty or more Initial Standby Purchasers holding in the aggregate six percent (1806%) days after or more of the then outstanding Common Stock or
(2) a request from one or more Standby Purchasers holding in the aggregate ten percent (10%) or more of the then outstanding Common Stock (any Standby Purchaser or Purchasers making the request pursuant to clause (i) or (ii), a “Requesting Stockholder”) that, in each case, the Company effect the registration under the Securities Act of all or any portion of such Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof (which may include a Shelf Registration provided that the Company is eligible to use Rule 415 for the purposes 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 five (5) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Standby Purchasers and thereupon shall use its commercially reasonable efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(h) and Section 2.09, all other Registrable Securities that any other Standby Purchaser (all such other Standby Purchasers, together with the Requesting Standby Purchasers, the “Registering Stockholders”) have requested the Company to register by request received by the Company within the relevant Registration Request Period, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that if such registration involves an underwritten Public Offering, all such Standby Purchasers requesting to be included in the registration must sell their Registrable Securities to the underwriters selected as provided in Section 2.04(f) on the same terms and conditions as apply to the Requesting Stockholders.
(b) Subject to 2.01(e), the Company shall not be obligated to effect more than five Demand Registrations, provided that the Company shall not be obligated to effect a Demand Registration unless the aggregate market price or fair value on the date of such request of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $40,000,000. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(c) The Company will from time to time as appropriate 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 Company revoking such request. A request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or (ii) the Requesting Stockholders reimburse the Company for all Registration Expenses of such revoked request.
(d) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, except as set forth in Section 2.01(c).
(e) Unless otherwise agreed with the Requesting Stockholders, any registration of the Company’s Common Stock pursuant to this Section 2.01 shall be effected solely for the IPOpurpose of registering the offer and sale of the Common Stock held by the Registering Stockholders and shall not be effected for any offer or sale by the Company of securities by the Company.
(f) If requested by one or more Standby Purchasers holding in the aggregate fifteen (15%) or more of the then outstanding Common Stock, the Company receives shall use its reasonable best efforts to have the Common Stock listed on a request from Holders national securities exchange (including The Nasdaq Stock Market LLC) or quoted on the bulletin board of the NASD, so long as the Company is at the time subject to the reporting requirements under the Exchange Act, whether or not as a result of a Demand Registration, and otherwise qualifies for such listing or quotation.
(g) 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 thirty-five percent 180 days, or in the case of a Shelf Registration, two years (35%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 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 SEC or other governmental agency or court and (2) less than 50% of the Registrable Securities then outstanding that the Company file a Form S-1 included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with respect to at least thirty-five percent (35%Section 2.01(h) such that less than 50% of the Registrable Securities then outstanding of the Requesting Stockholders sought to be included in which such registration are included.
(h) If a Demand Registration involves an underwritten Public Offering (including any Shelf Registration used to effect a Public Offering) and the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then managing underwriter advises the Company shall (i) within ten (10) days after and the date such request is givenRequesting Stockholders that, give notice thereof (in its view, the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional number of shares of Registrable Securities requested to be included in such registration by (including any other Holders, as specified by notice given by each such Holder to securities that the Company within twenty proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having a material adverse effect on such offering, including the price at which such shares can be sold (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement“Maximum Offering Size”), the Company receives a request from Holders of at least ten percent (10%) of shall include in such registration, in the Registrable Securities then outstanding that priority listed below, up to the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall Maximum Offering Size:
(i) within ten (10) days after the date such request is givenfirst, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be registered by any Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of Registrable Securities so requested to be included in such registration by any other Holderseach), as specified by notice given by each such Holder to the Company within twenty and
(20ii) days of the date the Demand Notice is given, and in each casesecond, subject to Section 2.01(e), any securities proposed to be registered for the limitations account of Sections 2.1(c) and 2.3the Company.
(ci) Notwithstanding the foregoing obligationsUpon notice to each Registering Stockholder, if the Company furnishes to Holders requesting may postpone effecting a registration pursuant to this Section 2.1 2.01 on one occasion during any period of six consecutive months for a certificate signed by the Company’s chief executive officer stating that reasonable time specified in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of notice but not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is exceeding thirty (30) days before (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company’s good faith estimate Company and the Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of the date Company the preparation of filing of, and ending on a date that is ninety which had then been commenced or (90ii) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause possession of material non-public information the disclosure of which would be required by the registration during the period specified in such registration statement to become effective or (B) if notice the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall reasonably believes would not be counted as “effected” for purposes in the best interests of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Safety-Kleen, Inc), Registration Rights Agreement (Safety-Kleen, Inc)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten For so long as the Partnership owns any Registrable Securities and is otherwise entitled to exercise its right (10“Initial Demand Right”) days after the date such to request is given, give notice thereof that ENLK prepare and file an initial registration statement (the “Demand NoticeInitial Registration Statement”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested pursuant to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%Section 2.1(a) of the Registrable Securities then outstanding Registration Rights Agreement, either the TPG Investors, on the one hand, or the GS Investors, on the other hand, upon delivery of a written notice to the Partnership and the other Investor, may request that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities Partnership exercise its Initial Demand Right and the Partnership, no earlier than three Business Days following receipt of such Holders having an anticipated aggregate offering pricerequest, net of Selling Expenses, of at least $5 million, then will exercise its Initial Demand Right in accordance with the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is givenRegistration Rights Agreement; provided, however, that notwithstanding anything in this Section 6.2(a) or in the Company may not invoke this Registration Rights Agreement to the contrary, no Investor shall have the right to request that the Partnership exercise its Initial Demand Right after the date on which such Investor and its Affiliates no longer collectively own more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); 50% of the Class A Units that such Investor and provided further that its Affiliates owned as of the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded RegistrationClosing.
(dii) The Company shall If the Partnership has not be obligated to effectexercised its Initial Demand Right, either the TPG Investors, on the one hand, or the GS Investors, on the other hand, to take the extent such Investors directly own Registrable Securities and following prior consultation with the other Investors, may exercise any action respective rights they may have to effect, any registration request that ENLK prepare and file an Initial Registration Statement pursuant to Section 2.1(a) of the Registration Rights Agreement; provided, however, that notwithstanding anything in this Section 6.2(a) or in the Registration Rights Agreement to the contrary, no Investor shall have the right to request that ENLK file an Initial Registration Statement after the date on which such Investor and its Affiliates no longer collectively own more than 50% of the Registrable Securities to which such Investor was entitled as of the Closing.
(iiii) during Following the period filing of the Initial Registration Statement, for so long as the Partnership owns any Registrable Securities and is otherwise entitled to exercise its right to request the filing of additional Registration Statements under Section 2.1(a) of the Registration Rights Agreement (each, an “Additional Demand Right”), either the TPG Investors, on the one hand, or the GS Investors, on the other hand, upon delivery of a written notice to the Partnership and the other Investor, may request that the Partnership exercise an Additional Demand Right and the Partnership, no earlier than three Business Days following receipt of such request, will exercise such Additional Demand Right in accordance with the Registration Rights Agreement; provided, however, that without the prior written consent of the other Investors, neither the TPG Investors, on the one hand, nor the GS Investors, on the other hand, shall have any right to request the filing of a number of additional Registration Statements pursuant to this Section 6.2(a)(iii) and Section 6.2(a)(iv) that is sixty greater than such Investors’ proportionate share (60) days before the Company’s good faith estimate based on such Investors’ then-current relative ownership of the date Registrable Securities owned by all Investors) of the total number of Registration Statements that are permitted under Section 2.1(a) of the Registration Rights Agreement, rounded to the nearest whole number.
(iv) Following the filing ofof the Initial Registration Statement, and ending if any of the TPG Investors, on the one hand, or the GS Investors, on the other hand, directly owns any Registrable Securities, such Investor may exercise any rights it may have to request the filing of additional Registration Statements under Section 2.1(a) of the Registration Rights Agreement; provided, however, that such Investor provides written notice to the other Investor at least five Business Days prior to making any such request; provided further, that without the prior written consent of the other Investors, neither the TPG Investors, on the one hand, nor the GS Investors, on the other hand, shall have any right to request the filing of a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations number of additional Registration Statements pursuant to Section 6.2(a)(iii) and this Section 6.2(a)(iv) that is greater than such Investors’ proportionate share (based on such Investors’ then-current relative ownership of the Registrable Securities owned by all Investors) of the total number of Registration Statements that are permitted under Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing ofRegistration Rights Agreement, and ending on a date that is ninety (90) days after rounded to the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)nearest whole number.
Appears in 2 contracts
Sources: Coordination and Securityholders’ Agreement (Enfield Holdings Advisors, Inc.), Coordination and Securityholders’ Agreement (Enfield Holdings Advisors, Inc.)
Demand Registration. (a) Form S-1 Demand. If at the Company shall receive from any time one hundred eighty (180) days after the effective date member of the registration statement for Snow ▇▇▇▇▇▇ Group or the IPOTOBI Group (each, a “Requesting Equity Holder”) a written request that the Company receives effect a request from Holders of at least thirty-five percent (35%) registration with respect to all or a part of the Registrable Securities then outstanding that the Company file Shares held by such Requesting Equity Holder (a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in “Demand Registration”, which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 millionterm shall include any Marketed Underwritten Demand Registration and demands for a Marketed Underwritten Takedown Offering), then the Company shall will:
(i) within ten (10) days after the date of such request is givenrequest, give written notice thereof (of the “Demand Notice”) proposed registration to all Equity Holders (other than the Initiating Holders Requesting Equity Holder) and the holders of Other Shares; and
(ii) use commercially reasonable efforts to, as soon as practicable, and effect such registration which shall, in any event within sixty (60) days after the date such request case of a secondary offering, be on Form S-3 if the Company is given by the Initiating Holders, file a qualified for registration on Form S-1 registration statement S-3 under the Securities Act covering (or any comparable or successor form or forms thereto) (“Form S-3”) and if the Company is not qualified for registration on Form S-3 at such time, on Form S-1 under the Securities Act) (“Form S-1”) (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all of such Registrable Securities that Shares as are specified in such request, together with all or such portion of (A) the Initiating Holders requested other Registrable Shares joining in such request as are specified in a written request from any Equity Holder received by the Company, (B) any Other Shares entitled to be registered and participate therein as are specified in a written request from the holders of such Other Shares received by the Company, and/or (C) any additional Registrable Securities requested Primary Shares proposed to be included in such registration by any other Holders, as specified the Company by notice given by each such Holder from the Company to the Company Requesting Equity Holder, in each case within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, after written notice from the Company receives a request from Holders of at least ten percent (10%is given under Section 2(a)(i) of the Registrable Securities then outstanding above; provided that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.1(a2(a):
(1) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
(2) If the Company shall furnish to the Requesting Equity Holder a certificate signed by the Chief Executive Officer (or other authorized officer) of the Company stating that in the reasonable discretion of the Company the registration statement (i) during would require the period that is sixty Company to make an Adverse Disclosure or (60ii) days before could not be effected by the Company in compliance with the applicable financial statement requirements under applicable securities laws, the Company’s good faith estimate of the date of filing ofobligation to use its reasonable best efforts to comply with this Section 2(a), and ending on a date that is one hundred eighty its related obligations under Section 5, shall be deferred (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing shall only be permitted two deferrals pursuant to this Section 2(a)(ii)(2) and Section 2(d)(iv), in good faith commercially reasonable efforts the aggregate, in any twelve-month period, with such deferrals not to cause such exceed an aggregate of 90 days);
(3) If the Requesting Equity Holder and its Group propose to register Registrable Shares at an expected offering price, net of underwriter discounts and commissions, of less than $10,000,000 (net of Registration Expenses) in the aggregate; provided that this clause (4) shall not apply to a Shelf Registration covering an unspecified number of shares in accordance with Section 2(b); or
(4) With respect to registrations on Form S-3, in excess of an aggregate of more than four (4) Demand Registrations and/or Takedown Demands (as defined herein) in any calendar year or in excess of one Demand Registration or Takedown Demand per calendar quarter, excluding any Demand Registrations and Takedown Demands that are terminated in accordance with Section 2(b) below; or
(5) With respect to registrations on Form S-1, in excess of one (1) Demand Registration in any calendar year. Subject to the provisions of Section 2(e) below, the Company may, in its sole discretion, include Other Shares in the registration statement to become effective; (ii) after the Company has effected two registrations filed pursuant to Section 2.1(a) or (iii) if the Initiating request of the Requesting Equity Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d2(a).
Appears in 2 contracts
Sources: Registration Rights Agreement (Velocity Financial, Inc.), Securities Purchase Agreement (Velocity Financial, Inc.)
Demand Registration. If the Company shall receive from Infinity a written request to register shares of Registrable Securities (a) Form S-1 a "Demand. If at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO"), the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company shall prepare and file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement Registration Statement under the Securities 1933 Act covering all Registrable Securities that the Initiating Holders shares so requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is givenregistered, and in each caseshall use its best efforts to cause as expeditiously as possible such Registration Statement to become effective; provided, subject to however, that if at the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it the request for registration is eligible to use a Form S-3 registration statementmade, the Company receives a request from Holders is in the process of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement registering securities under the Securities 1933 Act covering all Registrable Securities requested to be included for sale by it or has pending or in such registration by any other Holdersprocess a material transaction, as specified by notice given by each such Holder to the Company within twenty (20) days disclosure of the date the Demand Notice is givenwhich would, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be of Directors of the Company, materially detrimental to and adversely affect the Company, the Company and its stockholders for may defer the filing (but not the preparation) of the requested Registration Statement (a) in the case of another registration statement in process, until the filing or abandonment of such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more but in no event longer than sixty (60) days after days, and (b) in the request case of the Initiating Holders is given; provideda material transaction, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive up to sixty (60) day periods aggregating days (but the Company shall use its best efforts to resolve the transaction and file the Registration Statement as soon as practicable). The Company shall be required to register the Registrable Securities pursuant to this Section 1.2 in response to any Demand by Infinity, provided (i) no Demand may be made by Infinity until on and after one year from the date hereof, (ii) only one Demand may be made by Infinity (together with all permitted assignees thereof pursuant to Section 1.9) in any calendar year and (iii) the Company shall not be required to register the Registrable Securities more than three (3) times on registration forms other than Form S-3 (or any substantially equivalent successive form). The registration of Registrable Securities under this Section 1.2 shall not be deemed to have been requested unless such registration becomes effective (provided that if, within one hundred twenty (120) daysdays after it has become effective, the offering of Registrable Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have become effective unless 80% of such Registrable Securities have been sold pursuant to such registration); , and provided further that if the Company registration has remained effective for one hundred twenty (120) days without such interference such registration shall not register be deemed to have been requested regardless of whether any securities or instruments for its own account or that of any other stockholder during the Registrable Securities are ultimately sold pursuant to such period other than an Excluded Registration.
(d) registration. The Company shall not be obligated may grant piggyback registration rights with respect to effect, or to take any action to effect, any registration statement demanded pursuant to this Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration1.2, provided that any such rights shall be subject to the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose priority of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of Infinity's rights under this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)1.2.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If Subject to the limitations contained in Section 4.7, at any time one hundred eighty (180) days after the effective date of the registration statement for the IPOand from time to time, the Company receives a request from Holders holders of at least thirty-five percent (35%) 51% of the Registrable Securities then outstanding that Series A Preferred Shares and Conversion Shares held by the TCW Holders and the holders of at least 51% of the outstanding Series A Preferred Shares and Conversion Shares held by the Pacific Holders and the Aquila Holders may give written notice to the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after of their intention to convert all or part of the date such request is given, give notice thereof (Series A Preferred Shares held by them and to transfer the “Demand Notice”) to all Holders other than Conversion Shares held or obtained by conversion of the Initiating Holders Series A Preferred Shares and (ii) requesting the registration of said Conversion Shares.
(b) Whenever the Company shall have received a demand to effect a registration pursuant to Section 4.3(a), the Company shall promptly give written notice of such proposed registration to all other Holders. Any such Holder may request in writing that all of such Holder's Conversion Shares, or any portion thereof, designated by such Holder, be included in the registered offering.
(c) The Company shall, as soon expeditiously as practicablepossible following receipt of a demand pursuant to Section 4.3(a), and in any event within sixty (60) days after effect the date registration of such request is given by the Initiating Holders, file a Form S-1 registration statement Conversion Shares under the Securities Act covering Act. The Sellers of the Conversion Shares shall have the right to select the managing underwriter or underwriters for the offering of such Conversion Shares.
(d) In the case of an underwritten public offering of Restricted Securities to be so registered, if the managing underwriter advises in its opinion that (i) the inclusion in such registration of some or all Registrable Securities that the Initiating Holders of such Common Stock requested to be registered and any additional Registrable Securities requested (including without limitation, securities to be included pursuant to incidental or "piggyback" rights heretofore or hereafter granted by the Company to other Persons) will cause the proceeds or price per share to the Sellers to be reduced or (ii) that the number of securities to be registered at the request of the Sellers pursuant to this Section 4.3 plus the number of securities sought to be registered by such other Persons is too large a number to be reasonably sold, then the number of securities to be included in such registration will be reduced as set forth below:
(i) the number of shares of Common Stock sought to be registered by any Holders of Common Stock, other Holdersthan the Conversion Shares, as specified by notice given by each such Holder shall be reduced pro rata to the Company within twenty (20) days extent necessary to reduce the number of the date the Demand Notice is given, and in each case, subject securities to be registered to the limitations of Sections 2.1(c) and 2.3.number recommended by the managing underwriter (the "Recommended Number");
(bii) Form S-3 Demand. If at any time when it is eligible if the reduction provided for in clause (i) does not reduce the number of shares of Common Stock to use a Form S-3 registration statement, be registered to the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 millionRecommended Number, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice number of Conversion Shares sought to all be registered by Holders other than the Initiating Holders that exercised the demand to effect such registration pursuant to Section 4.3(a) shall be reduced pro rata, in proportion to the number of Conversion Shares sought to be registered by such Holders of Conversion Shares, to the extent necessary to reduce the number of shares of Common Stock to be registered to the Recommended Number; and
(iii) if the reduction provided for in clauses (i) and (ii) as soon as practicableabove does not reduce the number of shares of Common Stock to be registered to the Recommended Number, and then the number of Conversion Shares sought to be registered shall be reduced pro rata, in proportion to the number of Conversion Shares sought to be registered by the Holders of such Conversion Shares, to the extent necessary to reduce the number of shares of Common Stock to be registered to the Recommended Number; provided, that in no event shall the holders of the Conversion Shares so included in such registration be required to pay any event within forty-five expenses relating to such registration, including, without limitation, all the expenses described in the first paragraph of Section 4.7, which are related to the inclusion of any other holders' Common Stock in the registration.
(45e) days The Company will not grant to any Person at any time on or after the date such hereof the right (a "Piggyback Right") to request is given by the Initiating Holders, file a Form S-3 registration statement Company to register any securities of the Company under the Securities Act covering all Registrable Securities requested to be included in such registration by reason of the exercise by any other HoldersHolder of its rights under this Section 4.3 unless such Piggyback Right provides that such securities shall not be registered and sold at the same time if the managing underwriter for the respective Sellers believes that sale of such securities would adversely affect the amount of, as specified by notice given by each such Holder to or price at which, the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3respective Conversion Shares being registered under this Section 4.3 can be sold.
(cf) Notwithstanding The Company agrees (1) not to effect any public or private sale or distribution of its equity securities, including a sale pursuant to Regulation D under the foregoing obligationsSecurities Act, if during the Company furnishes 10-day period prior to, and during the 120-day period beginning on, the closing date of an underwritten offering made pursuant to Holders requesting a registration statement filed pursuant to this Section 2.1 4.3 and (2) to cause each holder of its privately placed equity securities purchased from the Company at any time on or after the date of this Agreement to agree not to effect any public sale or distribution of any such securities during such period, including a certificate signed sale pursuant to Rule 144 under the Securities Act (except as part of such underwritten registration, if permitted). Except pursuant to a registration statement filed pursuant to this Section 4.3, each Holder agrees not to effect any public sale or distribution, including a sale pursuant to Rule 144 or 144A under the Securities Act, of any Restricted Securities during the 10-day period prior to, and during the 120-day period beginning on, the closing date of an underwritten offering made pursuant to a registration statement filed pursuant to this Section 4.3.
(g) The Company recognizes that money damages may be inadequate to compensate Holders for a breach by the Company’s chief executive officer stating Company of its obligations under this Section 4.3, and the Company agrees that in the good faith judgment event of such a breach the Board it would be materially detrimental to Holders may apply for an injunction of specific performance or the Company and its stockholders for granting of such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which other equitable remedies as may be for consecutive sixty (60) day periods aggregating awarded by a court of competent jurisdiction in order to one hundred twenty (120) days); afford Holders the benefits of this Section 4.3 and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during object to such period other than an Excluded Registration.
(d) The Company shall not be obligated to effectapplication, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date entry of such request. A registration shall not injunction or granting of such other equitable remedies on the grounds that money damages will be counted as “effected” for purposes of this Section 2.1(d) until such time as sufficient to compensate the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Holders.
Appears in 1 contract
Demand Registration. (a) Request for Registration on Form S-1 DemandOther than Form S-3. If Subject to the terms of this Agreement, in the event that the Company shall receive from Initiating Holder(s) at any time one hundred eighty after the earlier of (180i) days September 13, 2000, or (ii) three (3) months after the effective date of a Qualified Public Offering (provided that, if so required in writing by the registration statement for underwriter(s) of the IPOQualified Public Offering, such three-month period may be extended to a period not to exceed the greater of (I) the length of the lock-up period imposed on members of senior management of the Company in connection with the Qualified Public Offering and (II) six (6) months, provided further that if such three-month period is so extended, the Company receives shall use its reasonable best efforts to arrange for the Registration provided for in this Section 2.1(a) to be effective at or before the end of such extended period), a written request that the Company effect a Registration with respect to all or a part of the Registrable Securities of such Initiating Holder(s) on a form other than Form S-3 for an offering of (x) in the case of a request from Holders delivered by Initiating Holder(s), other than a Significant Holder of at least thirtytwenty-five percent (3525%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to Series E Registrable Securities, at least thirtytwenty-five percent (3525%) of the then outstanding Series F Registrable Securities or at least twenty-five percent (25%) of the then outstanding Series G Registrable Securities, or (y) in which the anticipated aggregate offering pricecase of a request from an Initiating Holder who is a single Significant Holder, net at least fifty percent (50%) of Selling Expensesthe then outstanding Registrable Securities represented by Convertible Securities owned by such Significant Holder, would exceed $10 million, then the Company shall (iA) within ten (10) days after promptly give written notice of the date such request is given, give notice thereof (the “Demand Notice”) proposed Registration to all Holders other than the Initiating Holders and (iiB) as soon as practicable, and use its best efforts to effect Registration of the Registrable Securities specified in any event within sixty (60) days after the date such request is given by of the Initiating HoldersHolder(s), file a Form S-1 registration statement under the Securities Act covering all together with any Registrable Securities that the Initiating Holders requested to be registered and of any additional Registrable Securities requested to be included Holder joining in such registration by any other Holders, request as are specified by notice in a written request given by each such Holder to the Company within twenty (20) business days after written notice from the Company. The Company shall not be obligated to take any action to effect any such Registration pursuant to this Section 2.1(a) (i) except as provided above, within the three (3) to six (6) months period referred to in the first sentence of this Section 2.1(a) or (ii) after the date Company has effected two (2) such Registrations pursuant to this Section 2.1(a) in which the Demand Notice Company has not Registered securities for its own account and such Registrations have been declared effective. If the number of Registrable Securities proposed to be Registered by the Initiating Holder(s) is givenreduced pursuant to Section 2.1(e)(iii), and such Registration shall not count toward the limit of two (2) Registrations referred to in each case, subject to the limitations of Sections 2.1(c) and 2.3preceding sentence.
(b) Right of Deferral of Registration on Form S-3 DemandOther than Form S-3. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice furnish to all such Holders other than who joined in the Initiating Holders and (ii) as soon as practicable, and in request for any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration Registration pursuant to this Section 2.1 2.1(a) a certificate signed by the Company’s chief executive officer President of the Company stating that that, in the good faith judgment of the Board Board, it would be materially detrimental to the Company and its stockholders for such registration statement any Registration to either become effective or remain effectivebe effected as requested under Section 2.1(a), then the Company shall have the right to defer taking action the filing of a Registration Statement with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, requested Registration for a period of not more than sixty one hundred twenty (60120) days after from delivery of the request of the Initiating Holders is givenHolders; provided, however, that the Company may not invoke utilize this right more than twice once in any twelve twelve-month period.
(12c) month period Request for Registration on Form S-3. Subject to the terms of this Agreement, in the event that the Company receives from one or more Initiating Holders a written request that the Company effect any Registration on Form S-3 (which may be or any successor form to Form S-3 regardless of its designation) at a time when the Company is eligible to Register securities on Form S-3 (or any successor form to Form S-3 regardless of its designation) for consecutive sixty (60) day periods aggregating an offering of Registrable Securities, the Company will promptly give written notice of the proposed Registration to one hundred all other Holders and will as soon as practicable use its best efforts to effect Registration of the Registrable Securities specified in such request, together with all of such Registrable Securities of any Holder joining in such request as are specified in a written request delivered to the Company within twenty (12020) daysbusiness days after written notice from the Company of the proposed Registration on Form S-3. There shall be no limit to the number of occasions on which the Company shall be obligated to effect Registration under this Section 2.1(c); and provided further that , but the Company shall not register be required to effect more than two (2) such Registrations in any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationcalendar year.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Sources: Senior Registration Rights Agreement (Airnet Communications Corp)
Demand Registration. 4.2.1 If on any occasion after the expiration of the one hundred and eighty (a180) Form S-1 Demandday period following an Initial Public Offering, a Holder shall notify the Company of its desire to offer or cause to be offered for public sale all or any portion of the Registrable Securities held by such Holder and such Holder's Permitted Transferees, the Company shall use its commercially reasonable efforts to cause such number of such Registrable Securities as may be requested by such Holder to be registered under the Securities Act by filing with the SEC a registration statement on the appropriate form covering such Registrable Securities. If at any time The Company shall not be required to cause a registration statement requested pursuant to this Section 4.2 to become effective prior to one hundred eighty (180) days after following the effective date of the a registration statement initiated by the Company, if the request for the IPO, registration has been received by the Company receives a request from subsequent to the giving of written notice by the Company, made in good faith, to the Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding to the effect that the Company file is commencing to prepare a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 Company- initiated registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating shall use -------- ------- commercially reasonable efforts to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during achieve such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is effectiveness promptly following such one hundred eighty (180180)-day period if the request pursuant to this Section 4.2 has been made prior to the expiration of such one hundred eighty (180)-day period. Each Holder shall be entitled to initiate one (1) days after demand registration pursuant to this Section 4.2 and such demand registration shall be exercisable by such Holder by notice to the effective date ofCompany signed by such Holder and/or one or more Permitted Transferee of such Holder, a Company-initiated registration, in either case holding in the aggregate at least fifty percent (50%) of the total number of Shares then held by such Holder and all of such Holder's Permitted Transferees; provided that for purposes of -------- determining which Holders are entitled to initiate a demand registration pursuant to this Section 4.2.1, (i) an individual Holder and one or more Holders which are trusts of which such individual Holder is the Company is actively employing in good faith commercially reasonable efforts settlor shall be deemed to cause such registration statement to become effective; be one and the same Holder and (ii) after The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Family Trust f/b/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Family Trust f/b/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Family Trust f/b/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall be deemed to be one and the Company has effected two registrations pursuant same Holder.
4.2.2 If the Holders intend to Section 2.1(a) or (iii) if distribute by means of an underwriting the Initiating Holders propose to dispose of shares of Registrable Securities that may that, by their request, are to be immediately registered on Form S-3 pursuant registered, the right of each Holder to a request made pursuant to Section 2.1(b)include such Holder's Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting. Each Holder shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected by the Company.
4.2.3 The Company shall not be obligated to effect, or to take any action to effect, may postpone the filing of any registration pursuant statement required under this Section 4.2 for a reasonable period of time, not to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is exceed ninety (90) days after the effective date ofduring any twelve-month period, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has made a good faith, reasonable determination that such filing would either: (a) require the disclosure of a material transaction or other matter and such disclosure would have a material adverse effect on the Company; or (b) otherwise have a material adverse effect on the Company because of unusual market conditions or other circumstances. Any registration effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective 4.2 and so designated by the SECHolder shall be subject to this Section 4.2, unless regardless of the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, form in which case such withdrawn registration statement shall be counted as “is effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request to file a Registration Statement, a completed Questionnaire and the other information required under this Agreement from Holders of at least thirty-five percent (35%) holding a majority of the Registrable Securities then outstanding that (the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million“Initiating Holders”), then the Company shall (i) within ten (10) days after the date such request is given, 10 Business Days give written notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and Holders, (ii) as soon as practicable, and in any event within sixty (60) 75 days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under Registration Statement with the Securities Act SEC covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such other Holder delivered to the Company within twenty (20) 20 days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(cSection 2.2(b), and (iii) and 2.3at its own cost, use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes may suspend the use of any Prospectus for a period not to Holders requesting exceed 75 days in any 90-day period or an aggregate of 120 days in any 12-month period (each, a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective“Suspension Period”), then if the Company shall have determined in good faith that, because of valid business reasons (not including avoidance of the right to defer taking action with respect to such filingCompany’s obligations hereunder), and any time periods with respect to filing or effectiveness thereof shall be tolled correspondinglyincluding, without limitation, plans for a period registered public offering, an acquisition or other proposed or pending corporate developments and similar events because of not more than sixty (60) days after filings with the request SEC or any events described in Section 3(h), it is in the best interests of the Initiating Holders is givenCompany to suspend such use; provided, however, that (i) the Company may not invoke this right suspend such use more than twice once in any twelve 12-month period, and (12ii) month period prior to suspending such use the Company provides Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension (which and each Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Holder is advised in writing that the Prospectus may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that used, which notice the Company agrees to provide promptly following the lapse of the event or circumstances giving rise to such suspension). Each Holder shall not register keep confidential any securities or instruments for its own account or that communications received by it from the Company regarding the suspension of any other stockholder during such period other than an Excluded Registrationthe use of the Prospectus (including, without limitation, the fact of the suspension), except as required by applicable law.
(dc) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a2.2(a) (i) during the period that is sixty (60) 30 days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) 90 days after the effective date of, a Company-initiated registrationregistration pursuant to which Holders had an opportunity to register Registrable Securities pursuant to Section 2.3; provided, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; , or (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two (2) registrations pursuant to Section 2.1(b2.2(a). Notwithstanding anything in Section 2.2 to the contrary, the Company shall not be required to effect more than one registration pursuant to Section 2.2(a) within during the twelve (12) month period immediately preceding from the date hereof through the one year anniversary of such requestthe date hereof. A registration shall not be counted as “effected” for purposes of this Section 2.1(d2.2(c) until such time as the applicable registration statement has been declared effective by the SEC.
(d) It shall be a condition precedent to the obligation of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, unless the Initiating Holders withdraw their request for Registrable Securities held by it and the intended method of disposition of such registration, elect not securities as is reasonably required to pay effect the registration expenses therefor, of such Holder’s Registrable Securities and forfeit their right as may be reasonably requested by the Company from time to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)time.
Appears in 1 contract
Sources: Registration Rights Agreement (Powerwave Technologies Inc)
Demand Registration. (ai) Form S-1 DemandThe Holders of a majority in interest of the Series A Exchange Shares that are Registrable Securities, collectively, may make up to two written requests for registration under the Securities Act of all or any part of the Series A Exchange Shares held by such Holders (the "Series A Demand Registrations") and (ii) the Holders of a majority in interest of the Series B Exchange Shares that are Registrable Securities, collectively, may make up to two written requests for registration under the Securities Act of all or any part of the Series B Exchange Shares held by such Holders (the "Series B Demand Registrations" and, together with the Series A Demand Registrations, the "Demand Registrations"); provided that (A) if, in accordance with the terms of the Series B Certificate of Designations, all outstanding shares of Series B Preferred are converted into shares of Series A Preferred, then the number of Series B Demand Registrations shall be reduced by one and the remaining Series B Demand Registration, if any, shall thereupon be converted into a Series A Demand Registration, (B) no Holder may request a Demand Registration prior to the nine-month anniversary of the Closing Date, (C) no Demand Registration may be requested within 180 days after the preceding request for a Demand Registration, and (D) each Demand Registration must be (1) in respect of Registrable Securities with a fair market value of at least $25,000,000 or (2) in respect of all remaining Series A Exchange Shares or Series B Exchange Shares, as applicable, that are Registrable Securities and have a fair market value of at least $500,000. If Such request will specify the aggregate number of shares of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof. Upon any such request, the Issuer shall promptly give written notice of the requested registration at least 15 days prior to the anticipated filing date of the registration statement relating to such Demand Registration to each non-requesting Holder. Promptly after the expiration of such 15-day period, the Issuer will notify all requesting Holders of the identities of the other requesting Holders and the number of shares of Registrable Securities requested to be included therein. At any time one hundred eighty (180) days after prior to the effective date of the registration statement for the IPOrelating to such registration, the Company receives a request from requesting Holders of at least thirty-five percent (35%) may revoke such request, without liability to any of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating requesting Holders, file by providing a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3Issuer revoking such request.
(b) Form S-3 Demand. If at any time when it is eligible A Demand Registration shall not be deemed to use have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a Form S-3 registration statement, the Company receives a request from Holders period of at least ten percent 60 days, exclusive of any period referred to in (10%A) below (or such shorter period in which all Registrable Securities of the Holders included in such registration have actually been sold thereunder). In addition, a Demand Registration shall not be deemed to have occurred if, after any registration statement requested pursuant to this Section 2.01 becomes effective, (A) such registration statement is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court (other than such an event which occurs on no more than one occasion with respect to such registration statement and does not exceed a period of five business days) and (B) less than 75% of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration statement has been sold thereunder. Should a Demand Registration not become effective due to the failure of a Holder to perform its obligations under this Agreement, provided, however, that at such time the Issuer is in compliance in all material respects with its obligations under this Agreement, then such Demand Registration shall be deemed to have been effected; provided that if such failure to perform is due to a material adverse change in the condition (financial or otherwise), business, assets or results of operations of the Issuer and its subsidiaries taken as a whole that occurs subsequent to the date of the written request made by any other the requesting Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date then the Demand Notice is given, and in each case, subject Registration shall not be deemed to the limitations of Sections 2.1(c) and 2.3have been effected.
(c) Notwithstanding In the foregoing obligationsevent that the requesting Holders withdraw or do not pursue a request for a Demand Registration and, pursuant to Section 2.01(b) hereof, such Demand Registration is deemed to have been effected, the Holders may reacquire such Demand Registration (such that the withdrawal or failure to pursue a request will not count as a Demand Registration hereunder) if the Company furnishes Holders reimburse the Issuer for any and all Registration Expenses (as defined in Section 3.03) incurred by the Issuer in connection with such request for a Demand Registration; provided that the right to reacquire a Demand Registration may be exercised a maximum of two times.
(d) If the Selling Holders requesting a registration so elect, the offering of such Registrable Securities pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that such Demand Registration shall be in the good faith judgment form of an underwritten offering. A majority in interest of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company Selling Holders shall have the right to defer taking action select the managing Underwriters and any additional investment bankers and managers to be used in connection with such offering, but prior to making such selection shall consult with the Issuer with respect thereto. In such event, the Issuer will reasonably assist with such offering and will make members of senior management reasonably available to participate (but only at such times and to such filing, and extent as will not interfere with the performance of their duties to the Issuer) in a customary "roadshow" at the Selling Holders' expense if the Underwriters believe that such a roadshow would assist in an orderly distribution of the Registrable Securities.
(e) The Issuer will have the right to preempt any time periods Demand Registration with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty primary registration by delivering written notice (60) within five business days after the Issuer has received a request for such Demand Registration) of such intention to the Selling Holders indicating that the Issuer has identified a specific business need and use for the proceeds of the Initiating sale of such securities and the Issuer shall use commercially reasonable efforts to effect a primary registration within 60 days of such notice. In the ensuing primary registration, the Holders is givenwill have such Piggyback Registration rights as are set forth in Section 2.02 hereof. Upon the Issuer's preemption of a requested Demand Registration, such requested registration will not count as a Demand Registration; provided that a Demand Registration will not be deemed preempted if the Holders are permitted to sell all requested securities in connection with the ensuing primary offering by exercising their Piggyback Registration rights. The Issuer may exercise the right to preempt only twice in any 360-day period; provided, howeverthat during any 360 day period there shall be two periods of at least 90 consecutive days each during which the Selling Holders may effect a Demand Registration.
(f) Subject to Section 2.03, that the Company may not invoke this right more than twice Issuer will be entitled to include in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments a Demand Registration shares of Common Stock for its own account or that for the account of any other stockholder during such period other than an Excluded RegistrationPersons.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Sources: Registration Rights Agreement (Francisco Partners Lp)
Demand Registration. (a) Form S-1 Demand. If Subject to Section 6 and the provisions of the Registration Rights Agreement, at any time after the Company’s Initial Public Offering, on no more than one hundred eighty (180) occasion following 180 days after the effective date Company’s Initial Public Offering, ▇▇▇▇▇▇ Holders owning a majority of the ▇▇▇▇▇▇ Shares may make a written request to the Company for a “shelf” registration statement for under and in accordance with the IPOprovisions of the Securities Act of all or part of the ▇▇▇▇▇▇ Shares. Promptly upon receipt of any such request (but in no event more than five business days thereafter), the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give will serve written notice thereof (the “Demand Notice”) of such registration request to all Holders other than the Initiating Holders and (ii) as soon as practicable▇▇▇▇▇▇ Holders, and the Company will include in such registration all Registrable Securities of any event ▇▇▇▇▇▇ Holder with respect to which the Company has received written requests for inclusion therein within sixty (60) 10 days after the date such request is Demand Notice has been given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demandapplicable ▇▇▇▇▇▇ Holders. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration All requests made pursuant to this Section 2.1 5(b) will specify the aggregate amount of Registrable Securities to be registered. Upon making a certificate signed by the Company’s chief executive officer stating that in the good faith judgment request pursuant to this Section 5(b), each ▇▇▇▇▇▇ Holder hereby shall have all of the Board it would be materially detrimental to rights and privileges of the Registration Rights Agreement and the Company and its stockholders for such registration statement each ▇▇▇▇▇▇ Holder agrees to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request bound by all of the Initiating Holders is giventerms, conditions and obligations of the Registration Rights Agreement, in each case as if the ▇▇▇▇▇▇ Holder were a “Holder” (as defined in the Registration Rights Agreement) and as if the Registrable Securities under this Agreement were “Registrable Securities” (as defined in the Registration Rights Agreement); provided, however, that the Company may not invoke this right more than twice in any twelve (12Section 5(b) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register give the ▇▇▇▇▇▇ Holder any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effectrights under, or subject the ▇▇▇▇▇▇ Holder to take any action to effectthe limitations contained in, any registration pursuant to Section 2.1(aSections 3(a), 3(f) (iand 3(g) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Registration Rights Agreement.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at At any time one hundred eighty (180from and after 180 days following the Effective Date and subject to Sections 2(c) days and 2(d) hereof, after the effective date receipt of the registration statement for the IPO, the Company receives a written request from Holders of at least thirty-five percent a Holder (35%the "INITIATING DEMAND HOLDER") of the Registrable Securities then outstanding requesting that the Company file effect a Form S-1 registration statement with respect to at least thirty-five percent (35%a "DEMAND REGISTRATION") of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all or part of the Registrable Securities that held by such Holder, which specifies the Initiating intended method or methods of disposition thereof, the Company shall promptly notify all Holders requested to be registered in writing of the receipt of such request and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder Holder, in lieu of exercising its rights under Section 3 hereof, may elect (by written notice sent to the Company within twenty (20) days from the date of such Holder's receipt of the aforementioned Company's notice) to have all or part of such Holder's Registrable Securities included in such registration thereof pursuant to this Section 2, and such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to include in such registration. Thereupon the Company shall, as expeditiously as is reasonably possible, file with the SEC and use commercially reasonable efforts to cause to be declared effective, a registration statement (a "DEMAND REGISTRATION STATEMENT") relating (subject to Section 2(b) hereof) to all of the Registrable Securities which the Company has been so requested to register by such Holders ("PARTICIPATING DEMAND HOLDERS") for sale, to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered, PROVIDED, HOWEVER, that the aggregate number of Registrable Securities requested to be registered by all Participating Demand Holders shall be, subject to Section 2(b) below, at least the greater of (a) five percent (5%) of the Common Shares issued and outstanding on the Effective Date, and (b) an aggregate value of $100,000,000, based on the closing trading price of the Common Shares on the date the demand to file such Demand Notice Registration Statement is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3made.
(b) Form S-3 Demand. If at any time when it is eligible to use the Initiating Demand Holder so requests that the offering be underwritten with a Form S-3 registration statementmanaging underwriter (which shall be selected in the manner set forth in Section 12 below) and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the Company receives number of Securities to be included in such offering is greater than the total number of Securities which can be sold therein without having a request from Holders of at least ten percent (10%) of material adverse effect on the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities distribution of such Holders Securities or otherwise having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 milliona material adverse effect on the marketability thereof (the "MAXIMUM NUMBER OF SECURITIES"), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. The Company shall include such Registrable Securities in a Demand Registration even if the Maximum Number of Securities is less than the threshold set forth in Section 2(a) above. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a PRO RATA basis, unless any of the Participating Demand Holders otherwise agree between or among themselves and notify the Company in writing of such agreement. If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Registration any other Securities of the Company, and then other Securities held by other security holders of the Company, on a PRO RATA basis if necessary, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(c) The following Shareholders shall be entitled to the following number of registrations of Registrable Securities pursuant to this Section 2: the ▇▇▇▇▇▇▇▇ Shareholders collectively - 3, ▇▇▇▇ Atlantic - 6, KIN - 2, Marubeni - 1, and AIF - 1. All Holders who are assignees or transferees of one of such Shareholders, or assignees or transferees of an assignee or transferee of one of such Shareholders shall collectively be entitled to such number of registrations pursuant to this Section 2 as the original Shareholder Holder of the relevant Registrable Securities was entitled pursuant to this Section 2(c), less any registrations demanded prior to the date such Person becomes a Holder hereunder. None of R ▇▇▇▇▇, H ▇▇▇▇▇, Spinconsult, GE or AT&T are entitled to any registrations of Registrable Securities pursuant to this Section 2. Each Shelf Registration pursuant to Section 4 hereof shall be deemed one Demand Registration pursuant hereto.
(d) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare and file (i) within ten more than one (101) days after the date such request is givenDemand Registration Statement under this Agreement in any six-month period, give a Demand Notice to all Holders other than the Initiating Holders and or (ii) as soon as practicable, and in any event Demand Registration Statement within forty-five ninety (4590) days after following the date such request of effectiveness of any Registration Statement (other than a Shelf Registration Statement).
(e) A Demand Registration requested pursuant to Section 2(a) hereof shall not be deemed to have been effected with respect to any Participating Demand Holder that is given by not able to register and sell at least 80% of the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all amount of Registrable Securities requested to be included on behalf of such Holder in such registration registration.
(f) A Participating Demand Holder may withdraw its request with respect to a Demand Registration at any time prior to the effective date of the Demand Registration Statement relating thereto by any other Holders, as specified by notice given by each such Holder providing to the Company written notice. Upon any such withdrawal, if the Company determines not to otherwise continue with such Registration Statement for the purpose of registering Common Shares of the Company, another Holder or another shareholder of the Company, the withdrawing Participating Demand Holder shall be obligated, pro rata with any other withdrawing Participating Demand Holder, to reimburse the Company, within twenty (20) 20 days of the date of the Demand Notice is givenwritten notice of withdrawal, and for all Expenses (as defined in each case, subject to the limitations of Sections 2.1(cSection 12 below) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed incurred by the Company’s chief executive officer stating , in connection with such withdrawn Demand Registration that in would not otherwise have been incurred by the good faith judgment of the Board it would Company. Any such withdrawn Demand Registration shall be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action counted with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” Holder for purposes of this Section 2.1(d2(c) until such time hereof as the applicable registration statement has been declared effective by the SECa completed Demand Registration, unless such withdrawal was the Initiating Holders withdraw their request for such registration, elect not result of a change in market conditions that would materially adversely effect the amount and/or price of the Registrable Securities to pay be included in the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Flag Telecom Holdings LTD)
Demand Registration. (a) Form S-1 Demand. If Upon the written request of (i) ZS or (ii) DLJMB on behalf of the DLJMB Entities (a "Selling Shareholder"), requesting that the Company effect the registration under the Securities Act of any or all such Selling Shareholder's Registrable Shares and specifying the intended method of disposition thereof, the Company will promptly give written notice of such requested registration (a "Demand Registration") at any time one hundred eighty (180) least 20 days after prior to the effective anticipated filing date of the registration statement for the IPOrelating to such Demand Registration to all other Shareholders, and thereupon will use its best efforts to effect, as expeditiously as possible, the Company receives a request from Holders of at least thirty-five percent registration under the Securities Act of:
(35%i) of the Registrable Securities then outstanding Shares that the Company file a Form S-1 registration statement with respect has been so requested to at least thirty-five percent (35%) register by the Selling Shareholder, then held by the Selling Shareholder, but, in the case of the Management Shareholders, subject to the provisions of Article 3 hereof; and
(ii) all other Registrable Securities then outstanding in which Shares that any other Shareholder or their Permitted Transferees (all such Shareholders, together with the anticipated aggregate offering priceSelling Shareholder, net of Selling Expenses, would exceed $10 million, then the "Holders") has requested the Company shall to register, subject to Article 3 hereof (iin the case of the Management Shareholders only) and Section 5.2 hereof, by written request received by the Company within ten (10) days after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Shares so to be registered; PROVIDED, HOWEVER, that (i) the Company shall not be obligated to effect more than one Demand Registration in any four-month period, (ii) the Company shall not be obligated to effect (A) more than five Demand Registrations for the DLJMB Entities (taken as a group) or (B) more than one Demand Registration for ZS pursuant to this Section 5.1, (iii) ZS will not be permitted to exercise a Demand Registration until after the consummation of the IPO, (iv) the Company shall not be obligated to effect a Demand Registration unless, in the reasonable judgment of DLJMB exercised in good faith, the aggregate Registrable Shares requested to be included in such Demand Registration by the Holders would have a fair market value of at least $20,000,000, or, in the case of ZS's Demand Registration, in the reasonable judgment of the Board exercised in good faith, the aggregate Registrable Shares requested to be included in such Demand Registration would have a fair market value of at least $5,000,000 and represent not less than 50% of ZS's Initial Ownership, (v) the Company may delay the filing of a registration statement pursuant to a Demand Registration for a reasonable period (not to exceed 90 days), if, in the good faith judgment of the Company, the Company would be required to include in such registration statement material business information which at that time cannot be publicly disclosed without material disruption of a significant corporate development or transaction then pending or in progress and without material adverse consequences, and (vi) if the effective date of the registration statement would otherwise be 45 calendar days after, but prior to 90 calendar days after, the end of the Company's fiscal year, and the Securities Act requires the Company to include audited financials (as of the end of such request fiscal year) or the Securities Act permits the use of, and DLJMB or ZS, pursuant to their demand request, has requested that the registration statement include audited financials (as of the end for such fiscal year), the Company may delay the filing of a registration statement for such period as is given, give notice thereof reasonably necessary (not to exceed a date 90 calendar days after the “Demand Notice”end of the Company's fiscal year) to include therein its audited financial statements for such fiscal year. Promptly after the expiration of the ten-day period referred to in Section 5.1(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other than Holders and the Initiating number of shares of Registrable Shares requested to be included therein in accordance with Section 5.2. The Selling Shareholder requesting a registration under this Section 5.1(a) may, at any time prior to the effective date of the registration statement relating to such Demand Registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company and such other Holders irrevocably revoking such request, in which case such request, so revoked, shall not be considered a Demand Registration if any Registration Expenses incurred by the Company as a result of such revoked request are paid by such Selling Shareholder; PROVIDED, HOWEVER, that any other Shareholder entitled to request a Demand Registration under this Section 5.1(a) may request the Company to continue such registration by providing written notice within five days of receipt of the notice revoking the original request, in which case such 35 registration shall constitute a Demand Registration of such other Shareholder.
(b) The Company will pay all Registration Expenses in connection with any Demand Registration, except as otherwise provided in the last paragraph of Section 5.1(a) hereof.
(c) A Demand Registration requested pursuant to Section 5.1(a) shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) as soon as practicablehas remained effective for a period of at least 120 days (or such shorter period in which all Registrable Shares of the Holders included in such Demand Registration has actually been sold thereunder); PROVIDED, and in HOWEVER, that, if after any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under requested pursuant to this Section 5.1 becomes effective, such registration statement is interfered with by any stop order, cease trade order, injunction or other order or requirement of the Securities Act covering all Registrable Securities that SEC, or other governmental agency or court solely due to the Initiating Holders requested actions or omissions to act of the Company, such registration statement shall be registered at the sole expense of the Company and any additional Registrable Securities shall not be considered a Demand Registration.
(d) If a Demand Registration involves a Public Offering and the managing underwriter thereof shall advise the Company and the Selling Shareholder that, in its view, (i) the number of Common Shares or other shares of common stock of the Company requested to be included in such registration (including Common Shares or other shares of common stock of the Company which the Company proposes to be included that are not Registrable Shares) or (ii) the inclusion of some or all of the Registrable Shares owned by the Holders, in either case, exceeds the largest number of Shares (including any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days shares of common stock of the date Company) that can be sold without having an adverse effect on such Public Offering, including the Demand Notice is given, and in each case, subject to price at which such shares can be sold (the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement"Maximum Offering Size"), the Company receives a request from Holders of at least ten percent (10%) will include in such registration, in accordance with the priority listed below, up to and not in excess of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect Maximum Offering Size:
(A) if such Demand Registration is being effected pursuant to outstanding Registrable Securities of such Holders having an anticipated aggregate offering priceDLJMB's initial Demand Registration request, net of Selling ExpensesFIRST, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities Shares requested to be included in such Demand Registration by the DLJMB Entities; SECOND, subject, in the case of the Management Shareholders, to Article 3 hereof, including, without limitation, the Public Offering Limitations, all Registrable Shares requested to be included in such Demand Registration by ZS and the Management Shareholders pro rata on the basis of the relative number of Registrable Shares offered for sale under such registration by any other Holders, as specified by notice given by ZS and each such Holder to the Company within twenty (20) days of the date Management Shareholders; and THIRD, any Common Shares (or other shares of common stock of the Company) proposed to be included in such Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed Registration by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.;
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has such Demand Registration is being effected two registrations pursuant to Section 2.1(bany of DLJMB's Demand Registration requests other than its initial Demand Registration request, FIRST, all Registrable Shares requested to be included in such Demand Registration by the DLJMB Entities and ZS pro rata on the basis of the relative number of Registrable Shares offered for sale under such registration by each of the DLJMB Entities and ZS; SECOND, subject to Article 3, including, without limitation, the Public Offering Limitations, all Registrable Shares requested to be included in such Demand Registration by the Management Shareholders pro rata on the basis of the relative number of Registrable Shares offered for sale under such registration by each of the Management Shareholders; and THIRD, any Common Shares (or other shares of common stock of the Company) within proposed to be included in such Demand Registration by the twelve Company; and
(12C) month period immediately preceding if such Demand Registration is being effected pursuant to ZS's Demand Registration request, FIRST, all Registrable Shares requested to be included in such Demand Registration by ZS; SECOND, all Registrable Securities to be included in such Demand Registration by the date DLJMB Entities and, subject to Article 3, including, without limitation, the Public Offering Limitations, the Management Shareholders pro rata on the basis of the relative number of Registrable Shares offered for sale under such requestregistration by each of the DLJMB Entities and each of the Management Shareholders; and THIRD, any Common Shares (or other shares of common stock of the Company) proposed to be included in such Demand Registration by the Company. A registration shall not be counted If as “effected” for purposes a result of the proration provisions of this Section 2.1(d) until 5.1{d), any Holder of Registrable Shares is not entitled to include all such time Registrable Shares in such Demand Registration, such Holder may elect to withdraw his, her or its request to include any Registrable Shares in such Demand Registration (a "Withdrawal Election"); PROVIDED, HOWEVER, that a Withdrawal Election shall be irrevocable and any Holder of Registrable Shares who has made a Withdrawal Election shall no longer have any right to include any Registrable Shares in such Demand Registration as to which such Withdrawal Election was made. The number of securities required to satisfy any underwriters' over-allotment option shall be allocated pro rata among all Holders of Registrable Shares and the applicable registration statement has been declared effective Company on the basis of the relative number of securities otherwise to be included by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay each of them in the registration expenses therefor, and forfeit their right with respect to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)over-allotment option relates.
Appears in 1 contract
Sources: Shareholders' Agreement (Von Hoffmann Holdings Inc)
Demand Registration. (a) Form S-1 Demand. If at At any time one hundred eighty (180) days after the effective date lapse of 180 days following the Initial Public Offering, one or more Stockholders which shall have maintained continuous beneficial ownership, individually or in the aggregate, following the Closing of at least 20% of the Fully-Diluted Shares (excluding any Fully-Diluted Shares sold or otherwise disposed of by any Stockholder after the Closing, if even subsequently reacquired) shall have the right to request that the Company register, in an underwritten public offering or otherwise, under the 1933 Act, Registrable Securities with an aggregate fair market value of at least $30,000,000 held by it or them (any registration resulting from such a request a “Demand Registration” with such Stockholder or Stockholders making such request the “Demanding Stock holder”); provided that no Stockholder, individually or together with other Stockholders, shall be entitled to request a Demand Registration with respect to shares of Common Stock held by it that are saleable without registration under the 1933 Act due to the availability of the exemption contained in Section 4(1) of the 1933 Act or pursuant to Rule 144(k) promulgated under the 1933 Act. A request for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold. A registration made pursuant to such a request shall not qualify as a Demand Registration hereunder until (a) the registration statement for relating thereto has been declared effective by the IPO, SEC and (b) the Company receives a request from Holders of Demanding Stockholder is able to register and sell at least thirty-five percent (35%) 75% of the Registrable Securities then outstanding that requested to be included in such registration. The Company shall not be required to effect, and each of MS, Ball, Hitachi, CapRe, Post and the Company file Other Holders shall not be entitled to request, more than two registrations each per MS, Ball, Hitachi, CapRe, Post and the Other Holders under this Section 4.2.
(b) Promptly (but in no event more than ten days) after receipt of a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering pricerequest for a Demand Registration, net of Selling Expenses, would exceed $10 million, then the Company shall (i) provide notice of such request to the non-Demanding Stockholders, and such non-Demanding Stockholders shall have the right, within ten (10) 10 days after the date of receipt of such notice from the Company, to request is given, give notice thereof that the Company include in the offering to which the Demand Registration relates all or a portion of such non-Demanding Stockholders’ Registrable Securities.
(the “Demand Notice”c) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and The Company shall not include in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Demand Registration any securities that are not Registrable Securities that without the Initiating Holders prior written consent of the Demanding Stockholder. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that, in their opinion, the number or class of Registrable Securities and, if permitted hereunder, other securities requested to be registered included in such offering, exceeds the number or class of Registrable Securities and any additional other securities, if any, which can be sold therein without adversely affecting the marketability of the offering, the Company shall include in such Demand Registration (A) first, the number of Registrable Securities requested to be included in such registration by any other HoldersStockholders pro rata, as specified by notice given if necessary, among such Stockholders based on the number of Registrable Securities owned by each such Holder Stockholder, (B) second, the number of equity securities to be registered for the account of the Company, and (C) third, any other securities of the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any pro rata, if necessary, on the basis of the number of such other Holders, as specified by notice given securities owned by each holder of such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3other securities.
(cd) Notwithstanding the foregoing obligationsforegoing, if the Company furnishes shall furnish to Holders requesting a registration pursuant to this Section 2.1 the Demanding Stockholder a certificate signed by an officer of the Company’s chief executive officer Company stating that that, in the reasonable good faith judgment of the Board Board, it would not be materially detrimental to in the best interests of the Company and its stockholders for such registration statement to either become effective be effected (because the Company is engaging in or remain effectiveintends to engage in an acquisition, divestiture or other material transaction or due to other extraordinary events relating to the Company, but, in any case, not including for purposes of the Company avoiding its obligations hereunder), then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, registration for a period of not more than sixty (60) 90 days after receipt of the request of the Initiating Holders is givenDemanding Stockholder; provided, however, that the Company may not invoke this right more than twice in any twelve (12i) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register be entitled to defer its obligation to effect a registration for an aggregate of more than 180 days within any securities or instruments for 365-day period and (ii) the Company shall make and communicate to the selling Stockholders its own account or that determinations under this paragraph in respect of any other stockholder during a registration under this Section 4.2 within 15 days of the Company’s receipt of the Demand Registration notice in respect of such period other than an Excluded Registrationregistration or, to the extent reasonably practicable, promptly after becoming aware of such transaction.
(de) The Company Demanding Stockholder shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during select the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, book-running and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing other managing underwriters in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 connection with an offering pursuant to a request made pursuant Demand Registration, and any additional investment bankers and managers to Section 2.1(b). The Company be used in connection with the offering, in each case which shall not be obligated reasonably satisfactory to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If From and after the one year anniversary of the date of the Stockholders Agreement, if the Company shall be requested by the DLJ Investors or their Permitted Transferees at any time one hundred eighty (180) days after the effective date of to effect the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering of all or a portion of their Registrable Securities that Shares, the Initiating Holders requested Company shall use its best efforts promptly to effect such registration in accordance with the provisions of this Agreement. The number of shares required to be registered and any additional Registrable Securities requested to be included in such registration by any other Holdersmust, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it DLJ Investors, have a fair market value of at least $20,000,000 if the Demand Registration would be materially detrimental to the Company constitute a Qualified IPO, and its stockholders for such registration statement to either become effective or remain effective, then the Company a market value of $10,000,000 in all other cases. The DLJ Investors shall have the right to defer taking action with respect request three such Demand Registrations.
(b) After the consummation of a Qualified IPO, (i) any Stockholder other than the DLJ Investors or their Permitted Transferrees holding 10% or more of the outstanding Common Stock shall have the right to such filingrequest two Demand Registrations from the Company, and (ii) any time periods with respect other Stockholder shall have the right to filing or effectiveness thereof shall request one Demand Registration from the Company; PROVIDED in each case that the number of Registrable Shares to be tolled correspondinglyregistered must have, for in the reasonable opinion of the proposed managing underwriter, a period fair market value of not more than sixty at least $10,000,000.
(60c) days From and after the request two year anniversary of this Agreement, Stockholders holding in the aggregate 40% or more of the Initiating Holders is given; provided, however, that outstanding Common Stock shall have the right jointly to request one Demand Registration from the Company may not invoke this right more than twice in at any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during time, if such period other than an Excluded Registrationregistration would constitute a Qualified IPO.
(d) The If such Demand Registration pursuant to Section 2(a), 2(b) or 2(c) above would constitute a Qualified IPO, the provisions of the Stockholders' Agreement would govern. Promptly after receiving request for a Demand Registration that does not constitute a Qualified IPO pursuant to Section 2(a), 2(b) or 2(c) above, the Company shall provide written notice thereof to all Stockholders. Any Stockholder who has the right at such time to transfer shares of Common Stock under Article III of the Stockholders Agreement may, within 15 Business Days of the receipt of the notice from the Company, give written notice to the Company that such Stockholder wishes to participate in the proposed Demand Registration, which notice shall specify the number of Registrable Shares such Stockholder desires to, and under the Stockholders Agreement is permitted to, include in such registration.
(e) Anything contained in Section 2(a), 2(b) or 2(c) to the contrary notwithstanding, the Company shall not be obligated to effect, or to take effect any action to effect, any registration Demand Registration under the Securities Act pursuant to Section 2.1(a2(a), 2(b) or 2(c), except in accordance with the following provisions:
(i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effectuse its best efforts to file and cause to become effective any Registration Statement during any period in which any other Registration Statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 180 days;
(ii) the Company may delay the filing or effectiveness of any Registration Statement for a period of up to 180 days after the date of a request for registration pursuant to this Section 2 if a Material Transaction exists at such time;
(iii) at any time prior to the effectiveness of a Registration Statement, or the Company may, in its sole discretion, convert a Demand Registration pursuant to take any action to effect, any Section 2 into a registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.63, in which case the provisions (including those governing inclusion of shares) set forth in Section 3 shall apply and such withdrawn registration statement so converted will not count as a Demand Registration pursuant to this Section 2;
(iv) with respect to any Demand Registration pursuant to this Section 2, the Company may include in such registration any Primary Shares, Other Securities and/or other securities; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares, Other Securities and/or other securities proposed to be included in such registration would interfere with the successful marketing (including pricing) of the Registrable Shares that are the subject of such Demand Registration, then the number of Registrable Shares, Primary Shares, Other Securities and/or other securities proposed to be included in such registration shall be counted as “effected” for purposes included in the following order:
(A) FIRST, all Registrable Shares requested to be included in such Demand Registration by the Stockholders who requested such registration pursuant to Section 2(a), 2(b) or 2(c) and all Registrable Shares requested to be included by other Stockholders pursuant to Section 2(d), PRO RATA among all such Stockholders based on the number of Registrable Shares owned.
(B) SECOND, the Primary Shares; and
(C) THIRD, the Other Securities.
(v) at any time before the Registration Statement covering Registrable Shares becomes effective, the Stockholder or group of Stockholders which requested such registration pursuant to this Section 2.1(dmay request the Company to withdraw or not to file the Registration Statement; and
(vi) the Company may, at its sole option, elect to satisfy a request for a Demand Registration pursuant to this Section on Form S-2 or Form S-3 promulgated under the Securities Act (or any successor forms thereto), if such forms are then available to the Company.
(f) The Company will not be required to effect more than one Demand Registration in any twelve-month period.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180Subject to Section 2(b) days after and Section 6, upon the effective date expiration of the registration statement for the IPOLock-up Period, the Company receives a certain Demanding Holders, as set forth below, may request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 effect the registration statement with respect of offers and sales related to at least thirty-five percent (35%) of their Registrable Shares under the Registrable Securities then outstanding in which the anticipated aggregate offering priceAct, net of Selling Expenses, would exceed $10 million, then and upon such request the Company shall (i) within ten (10) days after promptly use its reasonable best efforts to effect the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all of such Registrable Securities that the Initiating Holders requested to be registered and any additional Shares (a “Demand Registration”). Each holder of Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty Shares who is an Investor Shareholder (20i) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(cholding (together with its Affiliates) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least greater than ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company then-issued and its stockholders for such registration statement to either become effective or remain effective, then the Company outstanding Effective Shares shall have the right to defer taking action request unlimited Demand Registrations and (ii) holding (together with respect its Affiliates) between five percent (5%) and ten percent (10%) of the Company’s then-issued and outstanding Effective Shares will be entitled to such filingrequest two (2) Demand Registrations (collectively, and the “Demanding Holders”). ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT
(b) Notwithstanding anything contained in this Section 2 to the contrary, the Company shall not be obligated to effect any time periods registration under the Securities Act except in accordance with respect the following provisions:
(i) In no event shall the Company be required to filing or effectiveness thereof shall be tolled correspondingly, for a period of not effect in the aggregate more than sixty four (604) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice Demand Registrations in any twelve (12) month period and no Demanding Holder may request more than two (which may 2) Demand Registrations in any one hundred eighty (180)-day period; provided, however, if the Demanding Holders are unable to sell at least a majority of the Registrable Shares to be included in any registration pursuant to this Section 2 as a result of an underwriter’s cutback pursuant to Section 2(b)(iii), then such registration shall not be considered a requested Demand Registration by such Demanding Holder for consecutive sixty purposes of Section 2(a) (60although such registration shall be considered as a Demand Registration for purposes of the aggregate limitation set forth in this Section 2(b)(i), other than with respect to any Demanding Holder holding (together with its Affiliates) day periods aggregating greater than ten percent (10%) of the Company’s then-issued and outstanding Effective Shares who, to the extent such Demanding Holder has not requested a Demand Registration for such twelve (12) month period, shall be entitled to one hundred twenty additional Demand Registration for such twelve (12012) daysmonth period); .
(ii) The Company may delay the filing or effectiveness of any registration statement for a period of up to ninety (90) days after the date of a request for a Demand Registration pursuant to Section 2(a) if at the time of such request: (X) the Company is engaged, or has fixed plans to engage within ninety (90) days of the time of such request, in a firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares have been or will be permitted to include all the Registrable Shares so requested to be registered pursuant to Section 3, (Y) the Board reasonably determines that such registration and provided further that offering would interfere with any Material Transaction or (Z) within the last forty-five (45) days the Company has completed a firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares have been permitted to include Registrable Shares.
(iii) With respect to any registration pursuant to this Section 2, (A) the Company shall give notice of such registration, in accordance with the provisions of Section 3 hereunder, to each holder of Registrable Shares and shall offer to and shall include in such proposed registration any Registrable Shares requested to be included in such proposed registration by each holder of Registrable Shares, provided that such holder responds in writing to the Company’s notice within ten (10) days after delivery by the Company of such notice (which response shall specify the number of Registrable Shares such holder is requesting to include in such registration), and (B) the Company may include in such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and/or Other Shares requested to be included in such registration would interfere with the successful marketing (including pricing) of the Registrable Shares proposed to be included in such registration, then, the number of Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Investor Shares that are not register subject to (or in relation to which the Company has waived) any securities or instruments Subsequent Lock-up (or, if necessary, such Investor Shares pro rata among the holders thereof based upon the number of Investor Shares requested to be registered by each such Investor Shareholder); ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT
(B) second, the Primary Shares;
(C) third, the Management Shares (or, if necessary, such Management Shares pro rata among the holders thereof based upon the number of Management Shares requested to be registered by each such holder); and
(D) fourth, the Other Shares; provided, that at the election of the Company, (i) any registration pursuant to this Section 2 may be converted into a registration pursuant to Section 3 (in which event, such registration shall not be considered to be a requested Demand Registration by such Demanding Holder for its own account or that purposes of any other stockholder during Section 2(a) (although such period registration shall be considered as a Demand Registration for purposes of the aggregate limitations set forth in Section 2(b)(i), other than an Excluded Registrationwith respect to any Demanding Holder holding (together with its Affiliates) greater than ten percent (10%) of the Company’s then-issued and outstanding Effective Shares who, to the extent such Demanding Holder has not requested a Demand Registration for such twelve (12) month period, shall be entitled to one additional Demand Registration for such twelve (12) month period) or (ii) with the consent of the Demanding Holders, the Primary Shares may be set at the same priority level as the Registrable Shares thereby being cutback on a pro rata basis based upon the number of Registrable Shares and Primary Shares requested to be included in such registration statement by the holders of Registrable Shares and the Company.
(div) The Company shall not be obligated to effect, or effect any Demand Registration requested by any Demanding Holder if the anticipated gross offering price of all Registrable Shares to take any action be included therein would be less than $10,000,000.
(v) If the holders of the Registrable Shares requesting to effect, any registration be included in a Demand Registration pursuant to Section 2.1(a2(a) (i) during so elect, the period that is sixty (60) days before the Company’s good faith estimate offering of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations Registrable Shares pursuant to Section 2.1(a) or (iii) if such Demand Registration shall be in the Initiating Holders propose to dispose form of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b)an underwritten offering. The Company shall not be obligated select one or more nationally recognized firms of investment bankers reasonably acceptable to effectthe Majority Demanding Holders to act as the lead managing underwriter or underwriters in connection with such offering.
(vi) At any time before the registration statement covering such Registrable Shares becomes effective, a Demanding Holder may request the Company to withdraw or to take any action to effect, any not file the registration statement for which it had previously requested a Demand Registration pursuant to Section 2.1(b) 2(a). Upon delivery of a notice by a Demanding Holder to such effect, the Company shall cease all efforts to secure effectiveness of the applicable registration statement and such Demanding Holder shall be deemed to have used one of its Demand Registrations pursuant to Section 2(a), unless such request of withdrawal was caused by, or made in response to, (A) during a material adverse effect or a similar event related to the period that is thirty (30) days before the Company’s good faith estimate business, properties, condition, ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT or operations of the date Company not known (without imputing the knowledge of filing ofany other Person to such holders) by such Demanding Holder at the time its request was made, and ending on a date that is ninety (90) days after or other material facts not known to such Demanding Holder at the effective date oftime its request was made, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) a material adverse change in the financial markets. In addition, any such withdrawn registration shall not be considered to be a requested Demand Registration by such Demanding Holder for purposes of Section 2(a) if the Company shall have been reimbursed (in the absence of any agreement to the contrary, pro rata by the Demanding Holders) for all out-of-pocket expenses incurred by the Company in connection with such withdrawn registration (although, notwithstanding any reimbursement, such withdrawn registration shall be considered as a Demand Registration for purposes of the aggregate limitations set forth in Section 2(b)(i), other than with respect to any Demanding Holder holding (together with its Affiliates) greater than ten percent (10%) of the Company’s then-issued and outstanding Effective Shares who, to the extent such Demanding Holder has effected two registrations pursuant to Section 2.1(b) within the not requested a Demand Registration for such twelve (12) month period immediately preceding the date of such request. A registration period, shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request entitled to one additional Demand Registration for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(dtwelve (12) month period).
Appears in 1 contract
Demand Registration. 2.1 After the earlier of (ai) Form S-1 Demand. If the first anniversary of the date of this Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change in Control at any time one hundred eighty (180) days after the effective date of the registration statement for the IPOtime, the Company receives a request from Holders of at least thirty-five fifty percent (3550%) of all Registrable Securities then held by parties to this Agreement (or in the case of a Spin-Off the percentage of Registrable Securities equal to the proportion which the majority of the number shares of Common acquired pursuant to the Subscription Agreement bears to all Registrable Securities at the time of the Spin-Off) may request the Company to Register any or all of their Registrable Securities (a "Demand Notice"). Demand Notices shall be made in writing and shall specify the Holders making the Demand Notice, the number and type of Registrable Securities that each requests to be Registered, whether the Registrable Securities then outstanding will be sold through an underwriter, and if so, the underwriters name, address, telephone number and contact person. The Company will prepare and file a Registration Statement in accordance with Section 4 for the Registrable Securities to be Registered pursuant to a valid Demand Notice; provided that the Company shall not be required to prepare or file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement Registration Statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not 2 more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice once in any twelve (12) month period period, more than twice after an IPO or more than three (which may be for consecutive sixty 3) times in total. Registrations pursuant to Demand Notices are subject to the further limitations set forth in Section 2.3.
2.2 Within ten (6010) day periods aggregating to one hundred twenty (120) days); and provided further that days from its receipt of a valid Demand Notice, the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated deliver written notice to effectall Holders that, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant Demand Notice, the Company will prepare and file a Registration Statement. Any Holder who was not a party to Section 2.1(b). The Company shall not be obligated to effectthe Demand Notice may, or to take any action to effect, any registration pursuant to Section 2.1(b) within ten (A) during the period that is thirty (3010) days before from receipt of the Company’s good faith estimate of the date of filing of's notice, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that request the Company is actively employing to include the Holder's Registrable Securities in good faith commercially reasonable efforts the Registration Statement. If the Holders that initiated a Demand Notice specify therein that they intend to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw distribute their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).Registrable Securities through
Appears in 1 contract
Sources: Registration Rights Agreement (Aironet Wireless Communications Inc)
Demand Registration. (a) Form S-1 Demand. If at the Company shall receive from any time one hundred eighty (180) days after the effective date member of the registration statement for Snow ▇▇▇▇▇▇ Group or the IPOTOBI Group (each, a “Requesting Equity Holder”) a written request that the Company receives effect a request from Holders of at least thirty-five percent (35%) registration with respect to all or a part of the Registrable Securities then outstanding that the Company file Shares held by such Requesting Equity Holder (a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in “Demand Registration”, which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 millionterm shall include any Marketed Underwritten Demand Registration and demands for a Marketed Underwritten Takedown Offering), then the Company shall will:
(i) within ten (10) days after the date of such request is givenrequest, give written notice thereof (of the “Demand Notice”) proposed registration to all Equity Holders (other than the Initiating Holders Requesting Equity Holder) and the holders of Other Shares; and
(ii) use its reasonable best efforts to, as soon as practicable, practicable and in any event within sixty ninety (6090) days after days, in the date such request is given by the Initiating Holders, file case of any registration of shares conducted on a registration statement on Form S-1 registration statement under the Securities Act covering (or any comparable or successor form or forms thereto) or within forty-five (45) days, in the case of a registration of shares conducted on a registration statement on Form S-3 under the Securities Act (or any comparable or successor form or forms thereto, a “Form S-3”), effect such registration (which shall, in the case of a secondary offering, be on Form S-3 if the Company is qualified for registration on Form S-3 at such time) (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all of such Registrable Securities that Shares as are specified in such request, together with all or such portion of (A) the Initiating Holders requested other Registrable Shares joining in such request as are specified in a written request from any Equity Holder received by the Company, (B) any Other Shares entitled to be registered and participate therein as are specified in a written request from the holders of such Other Shares received by the Company, and/or (C) any additional Registrable Securities requested Primary Shares proposed to be included in such registration by any other Holders, as specified the Company by notice given by each such Holder from the Company to the Company Requesting Equity Holder, in each case within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, after written notice from the Company receives a request from Holders of at least ten percent (10%is given under Section 2(a)(i) of the Registrable Securities then outstanding above; provided that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.1(a2(a):
(1) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
(2) If the Company shall furnish to the Requesting Equity Holder a certificate signed by the Chief Executive Officer (or other authorized officer) of the Company stating that in the reasonable discretion of the Company the registration statement (i) during would require the period that is sixty Company to make an Adverse Disclosure or (60ii) days before could not be effected by the Company in compliance with the applicable financial statement requirements under applicable securities laws, the Company’s good faith estimate of the date of filing ofobligation to use its reasonable best efforts to comply with this Section 2(a), and ending on a date that is one hundred eighty its related obligations under Section 5, shall be deferred (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing shall only be permitted two deferrals pursuant to this Section 2(a)(ii)(2) and Section 2(d)(iv), in good faith commercially reasonable efforts the aggregate, in any twelve-month period, with such deferrals not to cause such exceed an aggregate of 90 days);
(3) If the Requesting Equity Holder and its Group propose to register Registrable Shares at an expected offering price, net of underwriter discounts and commissions, of less than $10,000,000 (net of Registration Expenses) in the aggregate; provided that this clause (4) shall not apply to a Shelf Registration covering an unspecified number of shares in accordance with Section 2(b);
(4) With respect to an aggregate of more than four (4) Demand Registrations and/or Takedown Demands (as defined herein) initiated by the Snow ▇▇▇▇▇▇ Group in any calendar year, excluding any Demand Registrations and Takedown Demands that are terminated by the Snow ▇▇▇▇▇▇ Group in accordance with Section 2(b) below; or
(5) With respect to an aggregate of more than one (1) Demand Registration or Takedown Demand (as defined herein) initiated by the TOBI Group, excluding any Demand Registrations and Takedown Demands that are terminated by the TOBI Group in accordance with Section 2(d)(ii) below. Subject to the provisions of Section 2(e) below, the Company may, in its sole discretion, include Other Shares in the registration statement to become effective; (ii) after the Company has effected two registrations filed pursuant to Section 2.1(a) or (iii) if the Initiating request of the Requesting Equity Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Velocity Financial, LLC)
Demand Registration. (ai) Form S-1 Demand. If A Holder or Holders other than Blackstone ("▇▇▇▇▇▇ Holders") may request (at any time one hundred eighty (180) days after the effective date Company completes an IPO) by written notice delivered to the Company that the Company register under the Securities Act all or any portion of the registration statement for Registrable Securities then held by such ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Holders (the IPO"Requesting ▇▇▇▇▇▇ Holders"), representing in the Company receives a request from Holders of at least thirty-five aggregate not less than fifty percent (3550%) of the Registrable Securities then outstanding that held by the ▇▇▇▇▇▇ Holders, for sale in the manner specified in such notice (including, but not limited to, an underwritten public offering). In each such case, such notice shall specify the number of Registrable Securities for which registration is requested, the proposed manner of disposition of such securities, and the minimum price per share at which the Requesting ▇▇▇▇▇▇ Holders would be willing to sell such securities in an underwritten offering. The Company file a Form S-1 shall, within five (5) Business Days after its receipt of any Requesting ▇▇▇▇▇▇ Holders' notice under this Section 2(a)(i), give written notice of such request to all other ▇▇▇▇▇▇ Holders and afford them the opportunity of including in the requested registration statement with respect to at least thirty-five percent (35%) such of the their Registrable Securities then outstanding as they shall specify in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by written notice given by each such Holder to the Company within twenty (20) days after their receipt of the Company's notice. Within ten (10) Business Days after the expiration of such twenty (20) day period, the Company shall notify all ▇▇▇▇▇▇ Holders requesting registration of (A) the aggregate number of Registrable Securities proposed to be registered by all ▇▇▇▇▇▇ Holders, (B) the proposed filing date of the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, and (C) such other information concerning the Company receives a request from offering as any Holder may have reasonably requested. If the ▇▇▇▇▇▇ Holders of at least ten percent (10%) a majority in aggregate amount of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration offering shall have requested that such offering be underwritten, the managing underwriter for such offering shall be chosen by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days ▇▇▇▇▇▇ Holders of a majority in aggregate amount of the date Registrable Securities being registered, with the Demand Notice is given, and in each case, subject to the limitations consent of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company consent shall not be obligated to effectunreasonably withheld, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is less than thirty (30) days prior to the proposed filing date stated in the Company's notice, and the Company shall thereupon promptly notify such ▇▇▇▇▇▇ Holders as to the identity of the managing underwriter, if any, for the offering. On or before the Company’s good faith estimate 30th day prior to such anticipated filing date, any ▇▇▇▇▇▇ ▇▇▇▇▇▇ may give written notice to the Company and the managing underwriter specifying either that (A) Registrable Securities of such ▇▇▇▇▇▇ ▇▇▇▇▇▇ are to be included in the underwriting, on the same terms and conditions as the securities otherwise being sold through the underwriters under such registration or (B) such Registrable Securities are to be registered pursuant to such registration statement and sold in the open market without any underwriting, on terms and conditions comparable to those normally applicable to offerings in reasonably similar circumstances, regardless of the date method of filing ofdisposition originally specified in Holder's request for registration.
(ii) Blackstone and its affiliates may request at any time, and ending on a date that is ninety (90) days after the effective date offrom time to time, a Company-initiated registration, provided that the Company register under the Securities Act all or any portion of the Registrable Securities held by them for sale by written notice delivered to the Company in the manner specified in such notice (including, but not limited to, an underwritten public offering). If such manner is actively employing an underwritten public offering, the managing underwriter shall be selected by Blackstone.
(iii) The Company shall use all commercially reasonable efforts to file with the SEC within eighty (80) days (thirty (30) days if the Company may use a Registration Statement on Form S-3 to register such Registrable Securities) after the Company's receipt of the initial Requesting ▇▇▇▇▇▇ Holders' or Blackstone's written notice pursuant to Section 2(a)(i) or (ii), a registration statement for the public offering and sale, in good faith accordance with the method of disposition specified by such Holders, of the number of Registrable Securities specified in such notice, and thereafter use all commercially reasonable efforts to cause such registration statement to become effective within sixty (60) days after its filing. Such registration statement may be on Form S-1 or another appropriate form (including Form S-3) that the Company is eligible to use and that is reasonably acceptable to the managing underwriter.
(iv) The Company shall not have any obligation hereunder (A) to permit or participate in more than two offerings pursuant to this Section 2(a)(i), except as and to the extent provided by Section 2(a)(vi) or Section 7(b), or (B) if the Company has effected two registrations ), except in connection with any one registration pursuant to Section 2.1(b2(a)(vi), to register any Registrable Securities under Section 2(a)(i) within unless it shall have received requests from Holders to register at least five percent (5%) of the twelve Outstanding Registrable Securities.
(12v) month period immediately preceding If the date Company is required to use all commercially reasonable efforts to register Registrable Securities in a registration initiated upon the demand of any Holder pursuant to Section 2(a)(i) or (ii) of this Agreement and the managing underwriters for such offering advise that the inclusion of all securities sought to be registered pursuant to Section 2 or 3 hereof may interfere with an orderly sale and distribution of or may materially adversely affect the price of such request. A offering, then the Company will include in such offering (x) first, the aggregate number of Registrable Securities requested to be included by the Holders pursuant to Section 2(a)(i) or (ii), as the case may be, and Section 3 which the managing underwriters advise will not likely have such effect, allocated pro rata based on the number of securities duly requested to be included in such registration and (y) second, all other securities requested to be included in such registration.
(vi) If all of the Registrable Securities of the ▇▇▇▇▇▇ Holders requested to be included in any registration pursuant to Section 2(a)(i) are not included in such registration as a result of the inclusion of any Registrable Securities in such registration pursuant to Section 3, the ▇▇▇▇▇▇ Holders shall not be counted as “effected” for purposes have one additional registration right under Section 2(a)(i).
(b) Notwithstanding any other provision of this Section 2.1(d) until such time as Agreement, the applicable Company shall have the right to defer or suspend the filing or effectiveness of a registration statement has been relating to any registration requested under Section 2(a) for a reasonable period of time not to exceed 90 days if a prior registration statement of the Company for an underwritten, primary public offering by the Company of its securities was declared effective by the SEC, unless SEC less than 120 days prior to the Initiating Holders withdraw their request for such anticipated effective date of the requested registration, elect not .
(c) No registration of Registrable Securities under this Article 2 shall relieve the Company of its obligation (if any) to pay the registration expenses therefor, and forfeit their right to one demand registration statement effect registrations of Registrable Securities pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Article 3.
Appears in 1 contract
Sources: Registration Rights Agreement (Graham Packaging Holdings Co)
Demand Registration. (i) On or after the date of the closing of the sale of the First Tranche Purchased Shares (the “First Tranche Closing”), as provided in Section 1.3 of the Investment Agreement, subject to the lapse or termination of restrictions on transfer in Section 6.5(a) of the Investment Agreement, if the Company shall receive from a Holder a request (the requesting Holder shall be referred to herein as the “Requesting Holder”) that the Company effect the registration under the Securities Act of all or any portion of the Requesting Holder’s Registrable Shares, 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 ten (10) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to all other Holders and thereupon shall use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(a) Form S-1 Demand. If at subject to the restrictions set forth in Section 2.01(v) hereof (and, during the first 18 months following the Third Tranche Closing, provided that the Registrable Shares may be transferred in accordance with the restrictions set forth in Section 6.5(a) of the Investment Agreement), all Registrable Shares for which the Requesting Holder has requested registration under this Section 2.01, and
(b) subject to the restrictions set forth in Sections 2.01(v) and 2.02 hereof, all other Registrable Shares of the same class as those requested to be registered by the Requesting Holder that any time one hundred eighty Holder or Holders (180all such Holders, together with the Requesting Holder, the “Registering Holders”) have requested the Company to register pursuant to Section 2.02, by request received by the Company within seven (7) Business Days after such Holders 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 Shares so to be registered; provided, that, (x) the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Shares requested to be included in such Demand Registration equals or exceeds $5,000,000, (y) the Company shall not be obligated to effect more than two (2) Demand Registrations, and (z) the Company shall not be obligated to effect a Demand Registration within less than ninety (90) days after (I) any other completed Demand Registration or (II) the effective date of a registration statement or the completion of a Piggyback Underwritten Offering pursuant to Section 2.02, in which the Requesting Holders in the Demand Registration had an opportunity to participate, other than a registration or Piggyback Underwritten Offering pursuant to the provisions of Section 2.02(ii) from which more than 20% of the Registrable Shares of the Requesting Holders that were previously requested to be included were excluded.
(ii) Promptly after the expiration of the seven (7) Business-Day period referred to in Section 2.01(i)(b), the Company will notify all Registering Holders of the identities of the other Registering Holders and the number of Registrable Shares requested to be included therein. At any time prior to the effective date of the registration statement for the IPOrelating to such registration, the Company receives a request from Holders of at least thirty-five percent (35%) Requesting Holder may revoke such request, without liability to any of the Registrable Securities then outstanding that other Registering Holders, by providing a notice to the Company file revoking such request. A request, so revoked, shall be considered to be a Form S-1 registration statement with respect to at least thirty-five percent Demand Registration unless (35%a) such revocation arose out of the Registrable Securities then outstanding fault of the Company (in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request), or (ib) within ten the Requesting Holder reimburses the Company for all Registration Expenses of such revoked request.
(10iii) days after The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such registration is effected, except as set forth in Section 2.01(ii)(b).
(iv) A Demand Registration shall not be deemed to have occurred unless the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement relating thereto (I) has become effective under the Securities Act covering and (II) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities that Shares of the Initiating Registering Holders included in such registration have actually been sold thereunder); provided, that, such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court
(v) If a Demand Registration involves an Underwritten Offering and the managing underwriter advises the Company and the Requesting Holder that, in its view, the number of Registrable Shares requested to be registered and included in such registration (including any additional securities that the Company proposes to be included that are not Registrable Securities Shares) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(a) first, all Registrable Shares requested to be included in such registration by any other Holdersall Registering Holders (allocated, as specified by notice given if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Registering Holders on the basis of the relative number of Registrable Shares held by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.Holder); and
(b) Form S-3 Demand. If at second, any time when it is eligible securities proposed to use a Form S-3 registration statement, be registered by the Company receives a request from Holders (including for the benefit of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder Persons not party to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3this Agreement).
(cvi) Notwithstanding The Company shall only be obligated to include the foregoing obligations, if applicable Registrable Shares of the Company furnishes to Holders requesting Holder in a registration statement pursuant to this Section 2.1 a certificate signed by 2.01 to the Company’s chief executive officer stating that in extent the good faith judgment of the Board it would be materially detrimental Holder has duly completed and delivered to the Company a selling shareholder questionnaire in the form reasonably satisfactory to the Company for such Registration Statement and its stockholders delivered by the Company to the Holder reasonably in advance (the “Selling Holder Questionnaire”) as the date that is two (2) Business Days before the proposed filing date for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationstatement.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If Subject to the conditions set forth in this Agreement, at any time after one hundred eighty (180) days after from the effective date of the registration statement for closing of the IPOAcquisition Agreement, the Company receives shall, at the written request of a request from Holders of at least thirty-five percent (35%Holder who is unable to sell its Registrable Shares pursuant to Rule 144(k) of under the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect Act, cause to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days be filed as soon as practicable after the date of such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date by such request is given by the Initiating Holders, file Holder a Form S-1 registration statement Registration Statement under Rule 415 under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder relating to the Company within twenty (20) days sale by the Holder of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use all or a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) portion of the Registrable Securities then outstanding that Shares held by such Holder in accordance with the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicableterms hereof, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially use reasonable efforts to cause such registration statement Registration Statement to become effective; be declared effective by the SEC as soon as practicable thereafter. If the Holder chooses to register less than all of the Registrable Shares at one time, then (i) it must seek to register a minimum of 10,000 Shares (or if such Holder owns less than 10,000 Registrable Shares, the total number of Registrable Shares then owned), (ii) after no Holder (including the Company Holder making the request) has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to made a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take register any action to effect, any registration pursuant to Section 2.1(b) (A) Registrable Shares during the one (1) year period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration ; and (iii) the total number of requests which may be made by Holders in the aggregate under this Section 3(a) shall not be counted as “effected” for purposes exceed three (3). The Company may, in its sole discretion, elect to file a Registration Statement with respect to any or all of the Shares before receipt of notice from any Holder. The Company agrees to use reasonable efforts to keep the Registration Statement continuously effective until the earlier of (i) six (6) months thereafter, or (ii) the date on which such Holder no longer holds any Registrable Shares. Notwithstanding the foregoing provisions of this Section 2.1(d) until such 3(a), during any period of time as which the applicable registration statement Company has been declared effective a Registration Statement in effect under the provisions of Rule 415 of the Securities Act relating to the original issuance by the SECCompany of shares of Common Stock in connection with the redemption of Holders' Units, unless or in the Initiating Holders withdraw their request for such registrationalternative, elect not to pay if the registration expenses thereforof such original issuance is not practicable, and forfeit their the sale by Holders of Registrable Shares in the form of the Common Stock to be received in connection with the redemption of Holders' Units then, such Holders will not have the right to one demand request the registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of Registrable Shares under the provisions of this Section 2.1(d3(a).
Appears in 1 contract
Sources: Registration Rights and Lock Up Agreement (Summit Properties Inc)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date of the registration statement As --------------------- ------------------- provided for the IPOin Section 2.2, the Company receives may include in a request from Demand Registration Equity Shares for the account of the Company, the other Holders of at least thirty-five percent (35%) of or other holders thereof exercising contractual piggy back or demand rights, on the same terms and conditions as the Registrable Securities then outstanding that to be included therein for the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) account of the Registrable Securities then outstanding in which Holder commencing the anticipated aggregate offering priceDemand Registration; provided, net of Selling Expenseshowever, would exceed $10 million, then the Company shall that (i) within ten (10) days after if the date such request managing Underwriter or Underwriters of any underwritten offering described in Section 2.1 have informed the Company in writing that it is given, give notice thereof (their opinion that the “Demand Notice”) to all Holders other than total number of Equity Shares which the Initiating Company and the Holders and any other holders participating therein intend to include in such offering is such as to materially and adversely affect the success of such offering, then (iix) as soon as practicablethe number of Equity Shares to be offered for the account of such other holders (if any) shall be reduced (to zero, if necessary), in the case of this clause (x) pro rata in proportion to the respective number of Equity Shares requested to be registered, (y) thereafter, if necessary, the number of Equity Shares to be offered for the account of the Company (if any) shall be reduced (to zero, if necessary) and (z) thereafter, if necessary, the number of Equity Shares to be offered for the account of the Holders (including the Holder commencing the Demand Registration) shall be reduced pro rata in any event within sixty (60) days after proportion to the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders respective number of Equity Shares requested to be registered and any additional Registrable Securities to the extent necessary to reduce the total number of Equity Shares requested to be included in such registration by any other Holders, as specified by notice given by each such Holder offering to the Company within twenty (20) days number of the date the Demand Notice is givenEquity Shares, and in each caseif any, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of recommended by such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders managing Underwriters and (ii) as soon as practicableif the offering is not underwritten, and in no other party, including the Company, shall be permitted to offer securities under any event within forty-five (45) days after such Demand Registration unless the date Holder commencing the Demand Registration consents to the inclusion of such request is given by the Initiating HoldersEquity Shares therein, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested such consent not to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3unreasonably withheld.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at At any time after the sooner of (x) the closing of an Initial Public Offering (but not within 180 days after the effective date of the Registration Statement filed in respect of that Initial Public Offering) and (y) March 29, 2012, by delivery of written notice to the Company (a "Demand Notice"):
(i) the Requisite Series C Holders may require the Company to register for sale under the Securities Act all or any portion of the Registrable Securities held by the Series C Holders for sale in the manner specified in such Demand Notice (a "Series C Demand Registration"). The Requisite Series C Holders shall be entitled to only two (2) Series C Demand Registrations pursuant to this Section 2.1(a)(i); provided, that, they may only make demand for one such Series C Demand Registration in any twelve month period, unless any of them shall have had any Registrable Securities excluded from a Registration Statement that was filed during such twelve month period; and
(ii) the Requisite Series AB Holders may require the Company to register for sale under the Securities Act all or any portion of the Registrable Securities held by the Series AB Holders for sale in the manner specified in such Demand Notice; provided, that (i) the portion of the Registrable Securities required to be so registered equals at least 25% of the shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock and Series B Preferred Stock then outstanding and (ii) the aggregate proceeds from the sale of the shares so registered is reasonably expected to exceed $30,000,000 (a "Series AB Demand Registration"). The Requisite Series AB Holders shall be entitled to only two (2) Series AB Demand Registrations pursuant to this Section 2.1(a)(ii); provided, that, they may only make demand for one such Series AB Demand Registration in any twelve month period, unless any of them shall have had any Registrable Securities excluded from a Registration Statement that was filed during such twelve month period; and
(iii) following a change in the "Series C Conversion Price" (as that term is defined in the Articles of Amendment), such that additional shares of Common Stock become issuable upon conversion of the outstanding Series C Preferred Stock, the Requisite Series C Holders may require the Company to register for sale under the Securities Act such additional shares of Common Stock (the "Additional Shares"), but only to the extent the Additional Shares are not at the time covered by an effective Registration Statement or such Additional Shares cannot be added by pre-effective amendment to an existing Registration Statement. Such Registration Statement shall include the plan of distribution specified in the Demand Notice delivered by the Requisite Series C Holders pursuant to this Section 2.1(a)(iii). Such Registration Statement also shall cover, to the extent allowable under the Securities Act (including without limitation Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Additional Shares. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be furnished for review in accordance with Section 2.4(a) prior to its filing or other submission. Notwithstanding anything in this Agreement to the contrary, no demand made pursuant to this Section 2.1(a)(iii) shall be deemed a Series C Demand Registration that reduces the number of such Series C Demand Registrations to which the Series C Holders are entitled hereunder; and
(iv) if the Company is then a registrant entitled to use Form S-3 or any successor form thereto to effect the distribution of such Registrable Securities for public sale or re-sale (as the case may be), (aa) the Requisite Series C Holders may require the Company to register for sale or re-sale under the Securities Act by filing a Registration Statement on Form S-3 or any comparable or successor form thereto for a public offering of all or any portion of the Registrable Securities held by them, or (bb) the Requisite Series AB Holders may require the Company to register for sale or re-sale under the Securities Act by filing a Registration Statement on Form S-3 or any comparable or successor form thereto for a public offering of all or any portion of the of Registrable Securities held by them, in each case, in accordance with the method of disposition specified in the Demand Notice. Whenever the Company is required by this Section 2.1(a)(iv) to effect the registration of Registrable Securities, each of the procedures and requirements of Sections 2.1 and 2.4 shall apply to such registration, and the Company shall cause such Registration Statement to be declared effective within one hundred eighty (180) days after the effective date Company's receipt of the registration statement request for such registration. There shall be no limitation on the IPOnumber of registrations on Form S-3 which may be requested and obtained under this Section 2.1, and such requests and registrations shall not reduce the number of Series C Demand Registrations or Series AB Demand Registrations, as the case may be, to which the Series C Holders or Series AB Holders, as the case may be, are entitled hereunder.
(b) Following receipt of any Demand Notice under this Section 2.1, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company shall file a Form S-1 registration statement with respect to at least thirty-five percent Registration Statement including the securities covered by such Demand Notice within thirty (35%30) days after receipt of such Demand Notice (the Registrable Securities then outstanding in which the anticipated aggregate offering price"Filing Deadline"), net of Selling Expenses, would exceed $10 million, then and the Company shall (i) within ten (10) days after use its best efforts to effect the date such request is given, give notice thereof (registration under the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) Securities Act as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after receipt of such Demand Notice (the effective date of"Effectiveness Deadline"), for public sale or re-sale in accordance with the method of disposition specified in such Demand Notice of the number of Registrable Securities specified in such Demand Notice. If a Company-initiated registrationRegistration Statement including the Registrable Securities referenced in the Demand Notice is not (i) filed with the Commission on or prior to the applicable Filing Deadline, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SECapplicable Effectiveness Deadline, unless then the Company shall make pro rata payments to each Investor whose securities are to be included in such Registration Statement, as liquidated damages (and not as a penalty, as damages are impossible to forecast or predict and these amounts are deemed reasonable in all respects), in an amount equal to 1.5% of the aggregate Market Price (as defined in the Articles of Amendment) (as of the Filing Deadline) of the Investor's securities to be included in such Registration Statement for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been filed or declared effective, as the case may be, for which no Registration Statement is filed or has not been declared effective, as the case may be, with respect to the Registrable Securities. Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors' exclusive remedy for such events. Such payments shall be made to each Investor in cash. The amounts payable as liquidated damages pursuant to this Section 2.1(b) shall be payable in lawful money of the United States, and amounts payable as liquidated damages shall be paid within two (2) Business Days of the last day of each such 30-day period during which the Registration Statement should have been filed or been declared effective, as the case may be, for which no Registration Statement was filed or had not yet been declared effective, as the case may be, with respect to the Registrable Securities.
(c) If the Initiating Holders withdraw Stockholders intend to distribute the Registrable Securities covered by their request for Demand Notice by means of an underwriting, the Initiating Stockholders shall so advise the Company in their Demand Notice. If the method of disposition is an underwritten public offering, the Initiating Stockholders may designate the managing underwriter of such registrationoffering, elect which designation shall be subject to the Company's approval, not to pay be unreasonably withheld. The Initiating Stockholders may elect to include in such underwriting all or any part of the registration expenses thereforRegistrable Securities it holds, and forfeit their right subject to one demand registration statement pursuant to Section 2.6, the limitations required by the managing underwriter as provided for in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Sources: Registration Rights Agreement (Molecular Insight Pharmaceuticals, Inc.)
Demand Registration. (a) Form S-1 DemandRequest by Holders. If at any time after the earlier of the expiry of (i) the four (4)-year period following the date of this Agreement and (ii) the one hundred eighty (180) days after day period following the effective date of the registration statement for the IPOInitial Public Offering, the Company receives a request from the Initiating Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering the Registrable Securities pursuant to this Section 9.3, then the Company shall, within ten (10) Business Days following the receipt of such written request, give written notice of such request (the “Request Notice”) to all Holders, and use its reasonable best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Initiating Holders requested request to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by written notice given by each such Holder Holders to the Company within twenty (20) days after receipt of the date the Demand Notice is given, and in each caseRequest Notice, subject only to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding this Section 9.3; provided that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effecteffect any such registration if the Company has, or within the six (6)-month period prior to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing ofsuch request, and ending on already effected a date that is one hundred eighty Registration pursuant to this Section 9.3 or Section 9.5 (180) days after the effective date ofprovided, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable best efforts to cause such registration statement to become effective; ) or in which the Holders had an opportunity to participate pursuant to the provisions of Section 9.4, other than a Registration from which the Registrable Securities of the Holders have been excluded (iiwith respect to all or any portion of the Registrable Securities the Holders requested be included in such Registration) after pursuant to the provisions of Section 9.4(a), provided, further that the Holders, together with the holders of any other securities of the Company has effected two registrations pursuant entitled to Section 2.1(ainclusion in such Registration, propose to sell Registrable Securities and such other securities (if any) or (iii) if at an aggregate price to the public of no less than US$50,000,000. For purposes of this Agreement, at the election of the Initiating Holders propose to dispose in connection with the exercise of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant right in this Agreement, reference to Section 2.1(b) (A) during Registration shall be deemed to mean the period equivalent registration in a jurisdiction other than the United States as designated by such Initiating Holders, it being understood and agreed that is thirty (30) days before in each such case all references in this Agreement to the Company’s good faith estimate Securities Act, the Exchange Act and rules, forms of the date registration statements and registration of filing ofsecurities thereunder, U.S. law and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes deemed to refer, to the equivalent statutes, rules, forms of this Section 2.1(d)registration statements, registration of securities and laws of and equivalent government authority in the applicable non-U.S. jurisdiction.
Appears in 1 contract
Sources: Shareholder Agreement (iQIYI, Inc.)
Demand Registration. (ai) Form S-1 Demand. If The Holder(s) of not less than thirty percent (30%) of the Registrable Securities shall have the right at any time, by written notice given to the Company (a “Demand Notice”), to request the Company to register under and in accordance with the provisions of the Securities Act all or any portion of the Registrable Securities designated by such Holder(s); provided, however, that prior to the time the Company is eligible to use Form S-3 for the registration of Registrable Securities for resale, such Holder(s), in the aggregate, shall only be entitled to two (2) Demand Registrations pursuant to the provisions of this Section 2(a)(i) unless any Demand Registration does not become effective or is not maintained in effect for the respective periods set forth in Section 2(c), in which case the relevant Holder(s) will be entitled to an additional Demand Registration pursuant hereto. Notwithstanding anything to the contrary, following the time that the Company becomes eligible for use of Form S-3 (or any successor form), any Holder or group of Holders holding, in the aggregate, ten percent (10%) or more of the outstanding Registrable Securities, shall have the right to request the Company to register under and in accordance with the provisions of the Securities Act all or any portion of the Registrable Securities designated by such Holder(s).
(ii) Upon receipt of a Demand Notice, the Company shall promptly (and in any event within ten (10) Business Days from the date of receipt of such Demand Notice) notify the other Holders of the 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 connection with any Demand Registration in which more than one Holder participates, in the event that such Demand Registration involves an underwritten offering and the managing underwriter or underwriters participating in such offering advise in writing the Holders holding Registrable Securities to be included in such offering 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 Registrable Securities to be offered shall be distributed amongst the participating Holders pro rata according to each Holder’s overall percentage of ownership in the Company. In the event of such a pro-rata distribution, to the extent that any Holder has not submitted a Demand Notice, or withdraws from the underwriting, then those Shares that would have been allocated pro-rata to the non-participating Holders if they had participated shall be distributed amongst the participating Holders pro rata according to each participating Holder’s overall percentage of ownership in the Company.
(b) The Company, within sixty (60) days of the date on which the Company receives a Demand Notice given by Holder(s) in accordance with Section 2(a), 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, in accordance with the intended method or methods of distribution, of the total number of Registrable Securities specified by the Holder(s) in such Demand Notice (a “Demand Registration”). Any Demand Registration may, at the request of the Holder(s) submitting the Demand Notice, be a Shelf Registration.
(c) The Company shall use commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 2 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) days after from the date on which the SEC declares such Registration Statement effective and (ii) in the case of a Shelf Registration, for a period of three (3) years from the date of on which the registration statement for the IPOSEC declares such Registration Statement effective, the Company receives a request from Holders of at least thirty-five percent in either case (35%x) until such earlier date as all of the Registrable Securities then outstanding that 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 2. The time period for which the Company file a Form S-1 registration statement is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods, and all Interruption Periods occurring with respect to at least thirtysuch Registration and such period and any extension thereof is hereinafter referred to as the “Effectiveness Period”.
(d) The Company shall be entitled to postpone the filing of any Registration Statement pursuant to this Section 2 or suspend the use of any effective Registration Statement under this Section 2 (i) during any Scheduled Black-five percent out Periods or (35%ii) as otherwise required by the Company, for a reasonable period (each, a “Delay Period”), if, in the case of clause (ii), the Board of Directors of the Company determines in good faith and in the Board of Directors’ reasonable judgment that the registration and distribution of the Registrable Securities then outstanding in which 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 the Company or any of its subsidiaries or would require premature disclosure thereof and promptly gives the relevant Holder(s) written notice of such determination, containing a general statement of the reasons for such postponement and an approximation of the period of the anticipated aggregate offering pricedelay; provided, net however, that, in the case of Selling Expensesclause (ii) above, would exceed $10 million, then the Company shall (i) within ten the aggregate number of days included in all Delay Periods (10other than any Scheduled Black-out Periods) during any consecutive twelve (12) months shall not exceed the aggregate of (x) ninety (90) days after minus (y) the date number of days occurring during all Interruption Periods during such request is given, give notice thereof consecutive twelve (the “Demand Notice”12) to all Holders other than the Initiating Holders months and (ii) as soon as practicable, and in any event within sixty a period of at least forty-five (6045) days after shall elapse between the date such request is given by termination of any Delay Period (other than any Scheduled Black-out Period) or Interruption Period and the Initiating Holderscommencement of the immediately succeeding Delay Period (other than any Scheduled Black-out Period). If the Company shall so postpone the filing of a Registration Statement, file a Form S-1 registration statement under the Securities Act covering all Holders holding Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested shall have the right to be included in such withdraw the request for registration by any other Holders, as specified by giving written notice given by each such Holder to from the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) a majority of the Registrable Securities then outstanding that were to be registered to the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after receipt of the date notice of postponement or, if earlier, the termination of such Delay Period (other than any Scheduled Black-out Period) and, in the event of such withdrawal, such request is given by shall not be counted for purposes of determining the Initiating Holders, file a Form S-3 number of requests for registration statement under to which the Securities Act covering all Holders holding Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration are entitled pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b)2. The Company shall not be obligated entitled to effect, initiate or to take any action to effect, any registration pursuant to Section 2.1(b) continue a Delay Period unless it shall (A) during the period that is thirty concurrently prohibit sales by all other security holders under registration statements covering securities held by such other security holders and (30B) days before in accordance with the Company’s good faith estimate policies from time to time in effect, forbid purchases and sales in the open market by directors and executive officers of the date Company.
(e) The Company shall not include any securities (whether for its own account or otherwise) that are not Registrable Securities in any Registration Statement filed pursuant to this Section 2 without the prior written consent of filing ofthe Holders holding a majority in number of the Registrable Securities covered by such Registration Statement (which consent shall not be unreasonably withheld). Any such securities so included shall be subject to the cut-back provisions of Section 2(a)(ii).
(f) Holders holding a majority in number of the Registrable Securities to be included in a Registration Statement pursuant to this Section 2 may, and ending on a date that is ninety (90) days after at any time prior to the effective date ofof the Registration Statement relating to such Registration, revoke such request by providing a Company-initiated registration, provided that written notice to the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of revoking such request. A registration Any such Demand Notice so withdrawn shall not be counted as “effected” for purposes of determining the number of requests for registration to which the Holders holding Registrable Securities are entitled pursuant to this Section 2.1(d2 but only to the extent the Holders holding Registrable Securities who revoked such request reimburse the Company 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 (i) until such time as the applicable registration statement has been declared effective Company’s failure to comply in any material respect with its obligations hereunder or (ii) the institution by the SECCompany of a Delay Period or the occurrence of any Interruption Period, unless the Initiating Holders withdraw their request for such registration, elect reimbursement shall not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)required.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at At any time one hundred eighty after the -------------------- expiration of six months after the IPO, TDF may request the Company to register under the Securities Act all or a portion of the shares of Restricted Shares held by it for sale in the manner specified in such notice; provided, that (180i) -------- the reasonably anticipated aggregate net proceeds to the sellers from such public offering would exceed $30,000,000, (ii) such request covers at least 5% of the Voting Securities then outstanding and (iii) no such request may be made by TDF more than once every nine months. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 4.02 within 90 days after the effective date of the a registration statement for the IPO, filed by the Company receives covering a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding firm commitment underwritten public offering in which the anticipated aggregate offering price, net holders of Selling Expenses, would exceed $10 million, then the Company Restricted Shares shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) have been entitled to all Holders other than the Initiating Holders and (ii) as soon as practicable, join pursuant to Sections 4.01 or 4.03 and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 which there shall have been effectively registered all shares of Restricted Shares as to which registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3shall have been requested.
(b) Form S-3 Demand. If at At any time when it is eligible to use a Form S-3 registration statementafter the expiration of six months after the IPO, any Stockholder or group of Stockholders may request the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement register under the Securities Act covering all Registrable Securities requested to be included or a portion of the shares of Restricted Shares held by such Stockholder or group of Stockholders for sale in the manner specified in such registration by any other Holdersnotice; provided, as specified by notice given by each such Holder that (i) the reasonably anticipated aggregate net -------- proceeds to the Company within twenty sellers from such public offering would exceed $30,000,000, (20ii) days such request covers at least 5% of the Voting Securities then outstanding and (iii) no such request may be made by such Stockholders or group of Stockholders more than once every nine months. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 4.02 within 90 days after the effective date of a registration statement filed by the Demand Notice is given, Company covering a firm commitment underwritten public offering in which the holders of Restricted Shares shall have been entitled to join pursuant to Sections 4.01 or 4.03 and in each case, subject which there shall have been effectively registered all shares of Restricted Shares as to the limitations of Sections 2.1(c) and 2.3which registration shall have been requested.
(c) Notwithstanding the foregoing obligationsFollowing receipt of any notice under this Section 4.02, if the Company furnishes shall immediately notify all holders of Restricted Shares from whom notice has not been received and shall use its best efforts to Holders register under the Securities Act, for public sale in accordance with the method of disposition specified in such notice from requesting a registration pursuant to this Section 2.1 a certificate signed holders, the number of shares of Restricted Shares specified in such notice (and in all notices received by the Company from other holders within 20 days after the giving of such notice by the Company’s chief executive officer stating that in ). If such method of disposition shall be an underwritten public offering, the good faith judgment holders of a majority of the Board it would shares of Restricted Shares to be materially detrimental sold in such offering may designate the managing underwriter of such offering, subject to the Company and its stockholders for such registration statement to either become effective approval of the Company, which approval shall not be unreasonably withheld or remain effective, then the delayed. The Company shall have the right be obligated to defer taking action with respect register Restricted Shares pursuant to such filingSection 4.02(a) on three occasions only and pursuant to Section 4.02(b) on three occasions only, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that -------- ------- such obligations shall be deemed satisfied only when a registration statement covering all shares of Restricted Shares specified in notices received as aforesaid, for sale in accordance with the Company may method of disposition specified by the requesting holders, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto unless (i) any such registration statement does not invoke become effective due to the withdrawal thereof by or on the request of the holders of 66 2/3% of the shares of Restricted Shares to be registered or (ii) the reason all shares of Restricted Shares specified in notices pursuant to this right Section 4.02 are not registered is due to a limitation on the registration of shares by the managing underwriter (which limitation shall be applied pro rata) and no more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that 50% of the Company shall Restricted Shares so specified are not register any securities registered as a result of the limitation imposed by such managing underwriter or instruments for its own account or that the voluntary withdrawal of any other stockholder during such period other than an Excluded Registrationshares from registration by the holder thereof.
(d) The Company shall not be obligated entitled to effect, or to take any action to effect, include in any registration pursuant statement referred to in this Section 2.1(a) 4.02, for sale in accordance with the method of disposition specified by the requesting holders, shares of Common Stock to be sold by the Company for its own account, except as and to the extent that, in the opinion of the managing underwriter (i) during if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the period marketing of the Restricted Shares to be sold. Except for registration statements on Forms ▇-▇, ▇-▇ or any successor thereto, the Company will not file with the Commission any other registration statement with respect to its Common Stock, whether for its own account or that is sixty (60) days before the Company’s good faith estimate of other stockholders, from the date of filing of, and ending on receipt of a date that is one hundred eighty (180) notice from requesting holders pursuant to this Section 4.02 90 days after the effective date of, a Company-initiated registration, provided that commencement of the Company is actively employing in good faith commercially reasonable efforts to cause such public offering of the Restricted Shares covered by the registration statement to become effective; (ii) after the Company has effected two registrations requested pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)4.02.
Appears in 1 contract
Demand Registration. Upon the written request from any Initiating Holder (a"Requesting Initiating Holder") Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, that the Company receives a request from Holders of at least thirty-five percent (35%) effect any registration with respect to all or any portion of the Registrable Securities then outstanding that (other than a registration on Form F-3 or any related form of registration statement), the Company will:
2.1.1. Promptly give written notice of the proposed registration to all other Holders holding Registrable Securities; and
2.1.2. As soon as practicable, use its best efforts to effect such registration (including, without limitation, the execution of an undertaking to file a Form S-1 registration statement posteffective amendments, appropriate qualifications under foreign, blue sky or other state securities laws and appropriate compliance with respect to at least thirty-five percent (35%) applicable regulations issued under the Securities Act), as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities then outstanding of any Holder(s) joining in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and are specified in any event within sixty (60) days after the date such a written request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days after receipt of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, such written notice from the Company receives a request from Holders in accordance with the provisions of at least ten percent Section 2.2 hereof (10%such Holder(s) of the Registrable Securities then outstanding being referred to as "Participating Holders"); provided that the Company file a Form S-3 registration statement with respect shall not be obligated to outstanding Registrable Securities of take any action to effect any such Holders having an anticipated aggregate offering priceregistration, net of Selling Expenses, of at least $5 million, then the Company shall qualification or compliance pursuant to this Section 2. 1:
(i) within ten In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(10ii) Prior to two hundred and seventy (270) days after the date such request is given, give a Demand Notice to all Holders other than hereof,
(iii) If the Initiating Holders propose to sell a number of shares of Registrable Securities at an aggregate offering price (after deduction for underwriter commissions and expenses) to the public of less than Five Million Dollars (ii$5,000,000);
(iv) as soon as practicableAfter the Company has effected two (2) such registrations pursuant to this Section 2.1 at the request of Telia, and in any event within forty-five (45) days after the date one such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by at the Company’s chief executive officer stating that in the good faith judgment request of the Board it would be materially detrimental to the Company ▇▇▇▇▇▇▇, and its stockholders for one (1) such registration statement pursuant to either become effective or remain effectivethis Section 2.1 at the request of Shamrock and Trefoil, then the Company shall have the right to defer taking action with respect to such filingtaken together, and any time periods with respect one (1) such registration pursuant to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after this Section 2.1 at the request of the Initiating Holders WP Entities, and each such registration has been declared or ordered effective; or
(v) If the request is given; provided, however, that received by the Company may not invoke this right more less than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred and twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after following the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such of any previous registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 filed pursuant to a request made pursuant to this Section 2.1(b2. L Subject to the foregoing clauses (i) through (v) and to Section 2.1.5 (below). The , the Company shall not file a registration statement covering the Registrable Securities so requested to be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate registered as soon as practicable after receipt of the date of filing of, and ending on a date that is ninety (90) days after request from the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Requesting Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Warburg Pincus Equity Partners Lp)
Demand Registration. At any time during the five year period following the Closing Date, the Investor holding in the aggregate not less than (ai) Form S-1 Demand25% of the aggregate Registrable Securities outstanding or (ii) Registrable Securities having a fair market value of at least $2 million, whichever is less, may make a written request (the "Demand Notice") for registration under the Securities Act (a "Demand Registration") of its Registrable Securities. If 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. Following receipt of a Demand Notice from the Investor, the Company promptly will file a registration statement on any appropriate form which will cover the Registrable Securities that the Company has been so requested to register by the Investor. Unless the Investor shall consent in writing, no party (including the Company) other than a Pecuniary Owner, DDR, USAA Real Estate Company ("Realco"), MS Real Estate Special Situations Inc. ("MRSE"), certain clients of Morg▇▇ ▇▇▇n▇▇▇ ▇▇▇et Management Inc. who have purchased Common Shares of the Company (such clients together with MRSE, the "Morg▇▇ ▇▇▇ities"), and Praedium II Industrial Associates LLC ("Praedium") shall be permitted to offer 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 any 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). The Investor, holding in excess of 50% of the Registrable Securities covered by a Demand Registration may at any time one hundred eighty (180) days after prior to the effective date of the Registration Statement relating to such registration statement for the IPO, revoke a Demand Notice by providing a written notice to the Company receives a request from Holders (in which case such Demand Registration shall not count as one of at least thirty-five percent (35%) the three Demand Registrations). If the Investor holding in the aggregate in excess of 50% of the Registrable Securities then outstanding that covered by the Demand Registration so elects, the offering of Registrable Securities pursuant to such registration shall be in the form of an Underwritten Offering. If the managing underwriter or underwriters of such offering advise the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) and the Investor in writing that in their opinion the number of the shares of Registrable Securities then outstanding in which and shares of DDR, Realco, the anticipated aggregate offering priceMorg▇▇ ▇▇▇ities or Praedium, net of Selling Expensesif any, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each offering is sufficiently large to materially and adversely affect the success of such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statementoffering, the Company receives a request from Holders will include in such registration the aggregate number of at least ten percent (10%) of the Registrable Securities then outstanding that and shares of DDR, Realco, the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering priceMorg▇▇ ▇▇▇ities or Praedium, net of Selling Expensesif any, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holdersincluded, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that which in the good faith judgment opinion of the Board it would such managing underwriter or underwriters can be materially detrimental to the Company and its stockholders for sold without any such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is givenmaterial adverse effect; provided, however, that no Registrable Securities or shares of DDR, Realco, the Company may not invoke this right more than twice in any twelve (12) month period (which Morg▇▇ ▇▇▇ities or Praedium, if any, may be for consecutive sixty (60) day periods aggregating excluded before all shares proposed to one hundred twenty (120) days); and provided further that be sold by other parties, including the Company Company, have been excluded. If any Registrable Securities are excluded, such registration shall not register any securities or instruments for its own account or that count as one of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not the three Demand Registrations. If the amount of Registrable Securities proposed to be obligated registered hereunder are required to effect, or to take any action to effect, any registration be excluded pursuant to Section 2.1(a) (i) during this paragraph, the period that is sixty (60) days before the Company’s good faith estimate number of Registrable Securities of the date of filing of, Investor and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose number of shares of DDR, Realco, the Morg▇▇ ▇▇▇ities or Praedium, if any, to be included in such Registration shall be reduced pro rata (according to the total number of Registrable Securities that or shares, as the case may be, beneficially owned by each such holder), to the extent necessary to reduce the total amount necessary to be immediately registered on Form S-3 included in the Offering to the amount recommended by such managing underwriter or underwriters. No registration pursuant to a request made pursuant or requests referred to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(bin this subsection 2(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)deemed to be a Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (American Industrial Properties Reit Inc)
Demand Registration. (a) Form S-1 Demand. If If, at any time one hundred eighty (180) days after the effective date Effectiveness Date and prior to the expiration of the registration statement for Registration Period, a Registration Statement is not effective with respect to all of the IPOShares (except by reason of an Allowed Delay), the Company receives a request from Holders of at least thirty-five percent (35%) a majority of the Registrable Securities then outstanding that (the Company file a Form S-1 “Majority Holders”) may request registration statement with respect to at least thirty-five percent (35%) under the Securities Act of the all or part of their Registrable Securities then outstanding in which (“Demand Registration”) on Form S-3, if available, or, if Form S-3 is not available for the Demand Registration, on such form as may be prescribed by the Commission. Each request for a Demand Registration shall specify the number of Registrable Securities requested to be registered and the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within per share price range for such offering. Within ten (10) days after receipt of any request for a Demand Registration, the date such request is givenCompany will, subject to the other provisions of this Agreement, give written notice thereof (the “Demand Notice”) of such requested registration to all other Holders other than of Registrable Securities, if any, and, subject to Section 1(d) below, will include in such registration the Initiating Holders and Registrable Securities of any such Holder from which the Company has received written requests for inclusion therein within fifteen (ii) as soon as practicable, and in any event within sixty (6015) days after the date receipt by such Holder of the Company’s notice.
(b) The Majority Holders will be entitled to request is given by no more than three (3) Demand Registrations. The Company will pay all expenses (pursuant to Section 6 herein); provided that a registration will not count as one of the Initiating Holders, file a Form S-1 registration statement under permitted Demand Registrations until it has become effective and unless the Securities Act covering all Holders of Registrable Securities that are able to register at least eighty percent (80%) of the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration (excluding from such calculation any Registrable Securities held by a Holder that is excluded from participating in such registration for failing to provide any other Holdersinformation required by this Agreement); and provided, as specified by notice given by each such Holder to further, that in any event the Company within twenty (20) days of the date the will pay all expenses in connection with any registration initiated as a Demand Notice Registration whether or not it has become effective and whether or not it is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3counted as a permitted Demand Registration.
(bc) Form S-3 Demand. If at The Company will not include in any time when it is eligible to use a Form S-3 registration statement, Demand Registration any securities that are not Registrable Securities without the Company receives a request from prior written consent of the Holders of at least ten percent (10%) a majority of the Registrable Securities then outstanding that included in such registration. If a Demand Registration is an underwritten offering and the managing underwriters in good faith advise the Company file a Form S-3 registration statement with respect to outstanding in writing that in their judgment the number of Registrable Securities of such Holders having an anticipated aggregate offering priceand, net of Selling Expensesif permitted hereunder, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities securities requested to be included in such registration by any offering exceeds the number of Registrable Securities and other Holderssecurities, as specified by notice given by each if any, that can be sold therein without materially reducing the price of such Holder Registrable Securities, the Company will include in such registration, prior to the Company within twenty (20) days inclusion of any securities that are not Registrable Securities, the date the Demand Notice is givennumber of Registrable Securities requested to be included, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of such underwriters can be sold without materially reducing the Board it would be materially detrimental to price of such Registrable Securities, pro rata among the Company and its stockholders for such registration statement to either become effective or remain effective, then respective Holders of Registrable Securities on the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request basis of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose number of shares of Registrable Securities that may each Holder of Registrable Securities has requested to be immediately registered on Form S-3 pursuant included in such registration.
(e) The investment banker(s) and managing underwriter(s) administering an offering initiated as a Demand Registration shall be the investment bankers and managing underwriters selected by the Company and agreed to by the Holders of a majority of the Registrable Securities included in any such Demand Registration at the time of its effectiveness.
(f) The Company will not grant to any Persons the right to request made pursuant the Company to Section 2.1(b)register any equity securities of the Company, or any securities convertible or exchangeable into or exercisable for such securities, that would be superior to or otherwise interfere with the registration rights granted hereunder. The Company shall not be obligated represents and warrants to effect, or the Investor that no Person has the contractual right to take require the Company to register any action to effect, any registration equity securities of the Company other than pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)Agreement.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180At the request of Sponsors, the ------------------- Company shall use reasonable efforts to effect the registration under the Securities Act pursuant to the terms of this Section 4.1(a) days after the effective date of the shares of Common Stock held by Sponsors; provided that upon the Public Sale of all of -------- Sponsors' Common Stock, Sponsors will no longer be entitled to any registration statement for rights pursuant to this Section 4.
1. At the IPOrequest of Cendant, the Company receives shall use reasonable efforts to effect a request from Holders of at least thirty-five percent (35%registration under the Securities Act pursuant to this Section 4.1(a) of the Registrable Securities then outstanding that shares of Common Stock or Convertible Preferred Stock held by Cendant. Sponsors jointly and Cendant shall each be entitled to four underwritten registrations pursuant to this Section 4.1 and Sponsors jointly and Cendant shall each be entitled to one "shelf" registration pursuant to this Section 4.
1. Until the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) earlier of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the third anniversary of the date hereof or (ii) the date on which Sponsors own less than 5% of the Common Stock, in any such request is givenregistration requested by Sponsors or Cendant, give notice thereof and in any additional underwritten registrations of Common Stock held by Sponsors or Cendant which the Company elects to effect (the “Demand Notice”) to all Holders other than as required pursuant to this Section 4.1(a)), Sponsors shall be entitled to register up to the Initiating Holders greater of (i) 80% of the total number of shares to be registered in the secondary offering by Sponsors and Cendant (including any shares to be sold by Sponsors and Cendant pursuant to the underwriters' over-allotment option, if exercised) or (ii) such percentage of the total number of shares to be registered in the secondary offering by Sponsors and Cendant such that Sponsors will have sold at least 70% of all shares sold by Sponsors and Cendant following the Company's initial public offering. After the third anniversary of the date hereof, in any registration requested by Sponsors or Cendant, and in any additional under written registrations of Common Stock held by Sponsors or Cendant which the Company elects to effect (other than as required pursuant to this Section 4.1(a)), each of Sponsors and Cendant shall be entitled to register a number of shares equal to 50% of the total number of shares to be registered in the secondary offering by Sponsors and Cendant (including any shares to be sold by Sponsors and Cendant pursuant to the underwriters' over-allotment option, if exercised). Notwithstanding the foregoing, once Sponsors own less than 5% of the Common Stock, in any registration requested by Cendant or Sponsors, Cendant shall be entitled to register 100% of the total number of shares to be registered in a secondary offering (including any shares to be sold pursuant to the underwriters' overallotment option, if exercised), subject to Sponsors' right to include shares in such registration pursuant to Section 4.2 (subject to the limitations set forth in Section 4.2(b)). In any registration hereunder, Cendant shall be entitled, at its election, to (i) register the number of shares permitted to be registered by Cendant hereunder or (ii) cause the Company to register on its own behalf the number of shares set forth in clause (i) and use the proceeds from the sale of such shares to redeem, at Cendant's election, the Convertible Preferred Stock or Senior Preferred Stock, if permitted by applicable law. If the proceeds of any sale under this Section 4.1 are not permitted under applicable law to be used to redeem the Convertible Preferred Stock or Senior Preferred Stock, then such proceeds shall be held by the Company to be paid in respect of such shares when and to the extent permitted by law.
(b) Registrations under this Section 4.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Company and (ii) as soon as practicableshall permit the disposition of the Common Stock in accordance with the intended method or methods of disposition.
(c) The Company will pay all Registration Expenses in connection with any registration pursuant to this Section 4.1.
(d) If a registration pursuant to this Section 4.1 involves an underwritten offering, the underwriter or underwriters thereof shall be selected, after consultation with the Company, jointly by Sponsors and Cendant, and in any event within sixty shall be reasonably acceptable to the Company.
(60e) days A registration requested pursuant to this Section 4.1 shall not be deemed to have been effected (i) if a registration statement with respect thereto has not become effective, provided that a registration which does not become effective after the date such request is given Company has filed a registration statement with respect thereto solely by reason of the refusal of Sponsors or Cendant to proceed shall be deemed to have been effected by the Initiating HoldersCompany at the request of Sponsors or Cendant, file as the case may be, (ii) if, after it has become effective, such registration becomes subject to, for longer than 90 days, any stop order, injunction or other order of the Commission or other governmental agency or court for any reason or (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 by reason of some act or omission by Sponsors. If a Form S-1 registration requested pursuant to this Section 4.1 is to be a "shelf" registration, the Company shall use reasonable efforts to keep such registration statement under effective for one year after the Securities Act covering all Registrable Securities effective date thereof, provided that the Initiating Holders requested Company shall not be required to keep the registration statement effective if the continued effectiveness of the registration statement would require the Company to disclose a material financing, acquisition or other corporate development and the Company shall have determined that such disclosure is not in the best interests of the Company for such period not to exceed 180 days; and provided further that the requirement to use reasonable efforts to keep the registration statement effective shall be registered extended one day for each day that the Company allows the effectiveness of the registration statement to lapse in reliance on the preceding proviso.
(f) If a registration pursuant to this Section 4.1 involves an underwritten offering, and any additional Registrable Securities the managing underwriter shall advise the Company in writing (with a copy to each holder of Common Stock being registered) that, in its opinion, the number of shares of Common Stock requested to be included in such registration by any other Holders, as specified by notice given by each exceeds the number which can be sold in such Holder offering within a price range acceptable to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statementStockholders requesting such registration, the Company receives a request from Holders of at least ten percent (10%) will include in such registration, to the extent of the Registrable Securities then outstanding that number which the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of is so advised can be sold in such Holders having an anticipated aggregate offering priceoffering, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested Common Stock to be included in such registration by any other HoldersSponsors and Cendant (or, as specified by notice given by each if Cendant makes the election described in Section 4.1(a), the Company) pro rata among such Holder to holders on the Company within twenty (20) days basis of the date the Demand Notice is given, and in each case, subject to the limitations number of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of --- ---- shares of Registrable Securities that may Common Stock requested to be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause included by such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)holders.
Appears in 1 contract
Sources: Stockholders Agreement (NRT Inc)
Demand Registration. (a) Form S-1 Demand. If Subject to the limitations contained in Section 10.7, at any time one hundred eighty (180) days after the effective date earlier of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding date that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall is (i) within ten (10) days six months after the date such request is given, give notice thereof Qualifying Offering (as defined in the “Demand Notice”Investment Agreement) to all Holders other than the Initiating Holders and or (ii) October 16, 1997 if the Qualifying Offering has not occurred by such date, the Issuer shall be requested by holders of warrants exercisable for a majority of the Stock Units then issuable upon the exercise of all warrants issued to the Investors (as soon defined in the Investment Agreement) to effect the registration of any of its Restricted Securities under the Securities Act, the Issuer shall promptly give written notice of such proposed registration to all holders of outstanding Restricted Securities and thereupon shall, as practicableexpeditiously as possible, and in any event within sixty (60) days after use its best efforts to effect the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act by filing pursuant to Rule 415 of the Securities Act a "shelf" registration statement on Form S-3 (or, if the staff at the SEC takes the position that Form S-3 is not available and holders of warrants exercisable for a majority of the Stock Units then issuable upon the exercise of all warrants issued to the Investors so request, on Form S-1) covering all Registrable Securities that Restricted Securities, the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder holder or holders of which shall have made written request to the Company Issuer for registration thereof within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) 30 days after the date giving of such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given written notice by the Initiating HoldersIssuer, file a all to the extent required to permit the disposition (in accordance with the intended methods thereof, as aforesaid) by the prospective Seller or Sellers of the Restricted Securities so registered; provided, that if Form S-3 is not available, the Issuer shall notify the holders of warrants in writing of such fact, which notice shall set forth the reasons therefor and the holders' right to request registration on Form S-1. Any registration statement under filed on Form S-1 shall be maintained by the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) Issuer for a period of 45 continuous days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligationsand, if not so maintained shall not be deemed to count against the Company furnishes to Holders requesting a number of effective registration statements pursuant to this Section 2.1 a certificate signed 10.3 permitted to be made by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration holders pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)10.
Appears in 1 contract
Sources: Preferred Stock Investment Agreement (Cd Radio Inc)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date The holders of a majority of all Series A Preferred Shares, Series B Preferred Shares, Series C Preferred Shares, Series D Preferred Shares, and Underlying Shares of the registration statement for Company (assuming that all Preferred Shares are converted into Common Shares), voting as a single class, shall have the IPOright, exercisable by giving notice to the Company, to require the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company to file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering to register the offer and sale of all Registrable Securities that or any portion of such holders’ (the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included “Rightholders”) Common Shares in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the a “Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding Registration”); provided that the Company file a Form S-3 registration statement with respect shall not be obligated to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting effect a registration pursuant to this Section 2.1 9.1 (other than a certificate signed by registration on Form S-▇, ▇▇▇▇ ▇-▇ or any successor form from and after the Company’s chief executive officer stating that in time the good faith judgment Company is eligible to use Form S-▇, ▇▇▇▇ ▇-▇ or any successor form, as applicable, as to which the Rightholders shall have unlimited rights to require the Company to effect a registration) on more than two occasions. In the event of the Board it would be materially detrimental to such a demand, the Company and its stockholders for such registration statement to either become effective or remain effective, then any other shareholders of the Company having registration rights shall have the right to defer taking action with respect include in such offering authorized but unissued Common Shares and Common Shares held by such shareholders, respectively, but only to the extent that, in the opinion of the managing underwriter(s) for such filingoffering, and any time periods with respect to filing or effectiveness thereof the inclusion of such shares will not adversely affect the sale of shares by the Rightholders. The managing underwriter(s) for such offering shall be tolled correspondingly, for a period of not more than sixty (60) days after selected by the request Company with the prior written approval of the Initiating Holders is given; providedRightholders holding a majority of the Common Shares held by Rightholders to be offered for sale pursuant to the Demand Registration, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company approval shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during unreasonably withheld. In the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after event the Company has effected two registrations not selected an underwriter approved by such Rightholders within thirty (30) days of the Rightholders’ notice, the Rightholders holding a majority of the Common Shares held by Rightholders to be offered for sale pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that Demand Registration may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b)select the underwriter. The Company shall not be obligated deemed to effect, or to take any action to effect, any registration have effected a Demand Registration pursuant to this Section 2.1(b9.1 unless the Rightholders shall have sold that number of shares representing at least fifty percent (50%) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date Preferred Shares (or an equivalent number of shares of Underlying Shares) then held by the Rightholders.
(b) The Company may postpone for up to 180 days the filing of, and ending on or effectiveness of a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement with respect to become effective or (B) a Demand Registration if the Company has effected two registrations and the Rightholders holding a majority of the Common Shares held by Rightholders to be offered for sale pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding Demand Registration agree that such Demand Registration might have an adverse effect on any proposed acquisition, merger, consolidation, tender offer or similar transaction. In the date event of postponement, the Rightholders shall be entitled to withdraw such request. A registration request and if withdrawn, such Demand Registration shall not be counted as “effected” deemed a Demand Registration for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)9.1.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (TomoTherapy Inc)
Demand Registration. (a) Form S-1 Demand. If at the Company shall receive from any time one hundred eighty (180) days after the effective date member of the registration statement for Snow P▇▇▇▇▇ Group or the IPOTOBI Group (each, a “Requesting Equity Holder”) a written request that the Company receives effect a request from Holders of at least thirty-five percent (35%) registration with respect to all or a part of the Registrable Securities then outstanding that the Company file Shares held by such Requesting Equity Holder (a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in “Demand Registration”, which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 millionterm shall include any Marketed Underwritten Demand Registration and demands for a Marketed Underwritten Takedown Offering), then the Company shall will:
(i) within ten (10) days after the date of such request is givenrequest, give written notice thereof (of the “Demand Notice”) proposed registration to all Equity Holders (other than the Initiating Holders Requesting Equity Holder) and the holders of Other Shares; and
(ii) use its reasonable best efforts to, as soon as practicable, practicable and in any event within sixty ninety (6090) days after days, in the date such request is given by the Initiating Holders, file case of any registration of shares conducted on a registration statement on Form S-1 registration statement under the Securities Act covering (or any comparable or successor form or forms thereto) or within forty-five (45) days, in the case of a registration of shares conducted on a registration statement on Form S-3 under the Securities Act (or any comparable or successor form or forms thereto, a “Form S-3”), effect such registration (which shall, in the case of a secondary offering, be on Form S-3 if the Company is qualified for registration on Form S-3 at such time) (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all of such Registrable Securities that Shares as are specified in such request, together with all or such portion of (A) the Initiating Holders requested other Registrable Shares joining in such request as are specified in a written request from any Equity Holder received by the Company, (B) any Other Shares entitled to be registered and participate therein as are specified in a written request from the holders of such Other Shares received by the Company, and/or (C) any additional Registrable Securities requested Primary Shares proposed to be included in such registration by any other Holders, as specified the Company by notice given by each such Holder from the Company to the Company Requesting Equity Holder, in each case within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, after written notice from the Company receives a request from Holders of at least ten percent (10%is given under Section 2(a)(i) of the Registrable Securities then outstanding above; provided that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.1(a2(a):
(1) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
(2) If the Company shall furnish to the Requesting Equity Holder a certificate signed by the Chief Executive Officer (or other authorized officer) of the Company stating that in the reasonable discretion of the Company the registration statement (i) during would require the period that is sixty Company to make an Adverse Disclosure or (60ii) days before could not be effected by the Company in compliance with the applicable financial statement requirements under applicable securities laws, the Company’s good faith estimate of the date of filing ofobligation to use its reasonable best efforts to comply with this Section 2(a), and ending on a date that is one hundred eighty its related obligations under Section 5, shall be deferred (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing shall only be permitted two deferrals pursuant to this Section 2(a)(ii)(2) and Section 2(d)(iv), in good faith commercially reasonable efforts the aggregate, in any twelve-month period, with such deferrals not to cause such exceed an aggregate of 90 days);
(3) If the Requesting Equity Holder and its Group propose to register Registrable Shares at an expected offering price, net of underwriter discounts and commissions, of less than $10,000,000 (net of Registration Expenses) in the aggregate; provided that this clause (4) shall not apply to a Shelf Registration covering an unspecified number of shares in accordance with Section 2(b);
(4) With respect to an aggregate of more than four (4) Demand Registrations and/or Takedown Demands (as defined herein) initiated by the Snow P▇▇▇▇▇ Group in any calendar year, excluding any Demand Registrations and Takedown Demands that are terminated by the Snow P▇▇▇▇▇ Group in accordance with Section 2(b) below; or
(5) With respect to an aggregate of more than one (1) Demand Registration or Takedown Demand (as defined herein) initiated by the TOBI Group, excluding any Demand Registrations and Takedown Demands that are terminated by the TOBI Group in accordance with Section 2(d)(ii) below. Subject to the provisions of Section 2(e) below, the Company may, in its sole discretion, include Other Shares in the registration statement to become effective; (ii) after the Company has effected two registrations filed pursuant to Section 2.1(a) or (iii) if the Initiating request of the Requesting Equity Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Velocity Financial, Inc.)
Demand Registration. (a) Form S-1 Demand. If Shareholders holding Registrable Securities may make an aggregate of up to three (3) written requests for registration under the Securities Act (including the first request contained in subsection 2.1(d) hereof) of all or any part of the Registrable Securities held by such Shareholders (a "Demand Registration"); provided that (i) the first Demand Registration must be in respect of not less than 2,500,000 Registrable Securities (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like), (ii) the second and third Demand Registrations must each be in respect of not less than either (x) 1,500,000 Registrable Securities (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like) or (y) Registrable Securities representing the right to cast at any time one hundred eighty least 6,500,000 votes at a meeting of stockholders of the Company (180exclusive of cumulative voting rights) ("Votes"), (iii) the Shareholders shall not request a Demand Registration within 150 days after of the effective date of a prior Demand Registration and (iv) the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of Shareholders shall indicate the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional (that is, Common Stock, Class B Common Stock or a combination of both). In addition, such request will specify the aggregate number of shares of Registrable Securities requested proposed to be included in sold by the Shareholders and will also specify the intended method of disposition thereof. A registration will not count as a Demand Registration until the distribution contemplated by such registration Demand Registration has been consummated. Should the distribution contemplated by any other Holders, as specified by notice given by each such Holder a Demand Registration not be consummated due to the Company within twenty (20) days failure of the date Participating Shareholders to perform their obligations under this Agreement or the inability of the Participating Shareholders to reach agreement with the Underwriters for the proposed sale on price or other customary terms for such transaction, or in the event the Participating Shareholders withdraw or do not pursue the request for the Demand Notice is given, and Registration (in each caseof the foregoing cases, subject provided that at such time the Company is in compliance in all material respects with its obligations under this Agreement), then such Demand Registration shall not be deemed to have been effected, but the limitations of Sections 2.1(c) and 2.3Participating Shareholders shall pay those expenses incurred by the Company in connection with such request set forth in Section 3.2 hereof.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statementthe Shareholders so elect, the Company receives a request from Holders offering of at least ten percent (10%) of the such Registrable Securities then outstanding that pursuant to such Demand Registration shall be in the Company file a Form S-3 registration statement with respect form of an underwritten offering. The Participating Shareholders shall have the right jointly to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then select the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders managing Underwriters and (ii) as soon as practicable, any additional investment bankers and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested managers to be included used in connection with such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each caseoffering, subject to the limitations of Sections 2.1(c) and 2.3Company's approval, which approval shall not be unreasonably withheld, conditioned or delayed.
(c) Notwithstanding the foregoing obligations, if the The Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall will have the right to defer taking action preempt any Demand Registration with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty primary registration by delivering written notice (60) within five business days after the Company has received from the Participating Shareholders a request for such Demand Registration) of such intention to the Initiating Holders is given; provided, however, Participating Shareholders indicating that the Company may not invoke this right more than twice in any twelve (12) month period (which may be has identified a specific business need and use for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); the proceeds of the sale of such securities and provided further that the Company shall use all commercially reasonable efforts to effect a primary registration within 90 days of such notice. In the ensuing primary registration, the Shareholders will have such piggyback registration rights as are set forth in Section 2.2 hereof. Upon the Company's preemption of a requested Demand Registration, such requested registration will not register count as a Demand Registration. The Company shall not be entitled to exercise this right of preemption more than one (1) time in any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration180 day period.
(d) The Company shall not be obligated to effect, or to take any action to effect, any Level 3 hereby requests the registration of a minimum of 2,500,000 Registrable Securities pursuant to Section subsection 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing ofabove, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith agrees to use commercially reasonable efforts to cause such registration statement Registrable Securities to become effective; (ii) after be sold in an underwritten offering on or before May 30, 2002, subject to the Company has effected two registrations pursuant to provisions of Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not and Level 3 agree that the co-lead underwriters of the offering will be obligated Morgan Stanley Dean Witter and Goldman, Sachs & Co. Level 3 acknowl▇▇▇▇▇ t▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇e the ▇▇▇▇▇ to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during ▇▇▇▇ less than 2,500,000 Registrable Securities in the period that is thirty (30) days before offering without the prior written consent of the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Sources: Registration Rights Agreement (Commonwealth Telephone Enterprises Inc /New/)
Demand Registration. (a) Form S-1 Demand. If at At any time one hundred eighty (180) days after the Closing Date, any Avista Holder may request, in writing (a "DEMAND REQUEST"), that the Company effect the registration under the Securities Act of all or part of its or their Registrable Shares (a "DEMAND REGISTRATION"). Notwithstanding the foregoing, no Demand Request will be effective date hereunder unless the Registrable Shares proposed to be sold by the Avista Holders requesting the Demand Registration (the "REQUESTING HOLDERS," which term shall include parties deemed "Requesting Holders" pursuant to Section 2.1(f) hereof) represent, in the aggregate, more than 25% of the registration statement for total number of Registrable Shares held by all Avista Holders.
(b) Each Demand Request shall specify the IPOnumber of Registrable Shares proposed to be sold and the intended method of disposition of the Registrable Shares (including an Underwritten Offering pursuant to Section 2.1(d) or a Shelf Registration pursuant to Section 2.1(f)). Subject to Section 2.1(h), the Company receives shall file the Demand Registration within 90 days after receiving a request from Demand Request (the "REQUIRED FILING DATE") and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC as promptly as practicable after such filing; provided, however, that the Company need effect only three (3) Demand Registrations pursuant to Demand Requests made by Avista Holders of at least thirty-five percent Registrable Shares pursuant to Section 2.1(a); provided, further, that if any Registrable Shares requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 2.1(e) below, the Avista Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(35%c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Shares and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Shares pursuant to a 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 will not count as a Demand Registration.
(d) The Requesting Holders may provide in the Demand Request that the offering of Registrable Shares pursuant to a Demand Registration shall be in the form of a "firm commitment" underwritten offering (an "UNDERWRITTEN OFFERING"). The Requesting Holders of a majority of the Registrable Securities then outstanding Shares to be registered in a Demand Registration shall select the investment banking firm or firms to manage the Underwritten Offering, provided that such selection shall be subject to the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) consent of the Registrable Securities then outstanding Company, which consent shall not be unreasonably withheld. No Person may participate in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall any registration pursuant to Section 2.1(a) unless such Person (i) within ten (10) days after agrees to sell such Person's Registrable Shares on the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided, however, that no such Person shall be required to make any representations or warranties in connection with any such registration other than representations and warranties as soon to (A) such Person's ownership of his or its Registrable Shares to be transferred free and clear of all liens, claims and encumbrances, (B) such Person's power and authority to effect such transfer and (C) such matters pertaining to compliance with securities laws as practicablemay be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Shares, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Shares pursuant to such registration.
(e) No securities to be sold for the account of any event within sixty Person (60including the Company) days after other than a Requesting Holder shall be included in a Demand Registration for an Underwritten Offering unless the date such request is given by managing underwriter or underwriters shall advise the Initiating Holders, file a Form S-1 registration statement under Company or the Securities Act covering all Registrable Securities Requesting Holders in writing that the Initiating inclusion of such securities will not materially and adversely affect the price or success of the Underwritten Offering (a "MATERIAL ADVERSE EFFECT"). Furthermore, in the event the managing underwriter or underwriters shall advise the Company or the Requesting Holders requested that even after exclusion of all securities of other Persons pursuant to the immediately preceding sentence, the amount of Registrable Shares proposed to be registered included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Shares of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which the Company is so advised can be sold in such offering without a Material Adverse Effect and any additional such shares shall be allocated pro rata among the Requesting Holders on the basis of the number of Registrable Securities Shares requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3Requesting Holder.
(bf) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, The Requesting Holders may provide in the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding Demand Request that the Company file a Form S-3 registration statement with respect offering of Registrable Shares pursuant to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than Registration shall be in the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file form of a Form S-3 registration statement "shelf offering" under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder made on a continuous basis pursuant to the Company within twenty Rule 415 (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
a "SHELF OFFERING"). The Shelf Offering shall be on Form S-1 (c) Notwithstanding the foregoing obligationsor on Form S-3, if the Company furnishes is eligible to Holders requesting a registration utilize such Form to register its shares). Subject to the terms of this Agreement, the Company shall use its best efforts to cause the Shelf Offering to be declared effective under the Securities Act as promptly as possible after the filing thereof and shall use its best efforts to keep such Shelf Offering continuously effective under the Securities Act until all Registrable Securities covered by such Shelf Offering have been sold or may be sold without volume restrictions pursuant to this Section 2.1 a certificate signed Rule 144(k) as determined by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental counsel to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).to
Appears in 1 contract
Sources: Registration Rights Agreement (Avista Capital Partners, L.P.)
Demand Registration. (a) Form S-1 Demand. If (i) Provided that the Company does not have the Registration Statement filed pursuant to Section 2 effective and usable to such Holder or group of Holders requesting a Demand Registration under this Section, at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file becomes a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement registrant under the Securities Act covering all Registrable Securities that Exchange Act, any Holder or group of Holders holding, in the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holdersaggregate, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) or more of the Registrable Securities issued and outstanding immediately following the effective date of the Plan (the “Initial Outstanding Amount”), shall have the right, by written notice given to the Company (a “Demand Notice”), to request the Company to register under and in accordance with the provisions of the Securities Act all or any portion of the Registrable Securities designated by such Holder(s); provided, however, that (x) the estimated fair market value of the Registrable Securities requested to be registered is equal to at least $10 million (or the entire amount of Registrable Securities then outstanding owned by the Holders if the estimated fair market value of the remaining Registrable Securities is less than $10 million), and (y) prior to the time the Company is eligible to use Form S-3 for the registration of Registrable Securities for resale, such Holder(s), in the aggregate, shall only be entitled to one Demand Registration per calendar year pursuant to the provisions of this Section 3(a)(i) unless any Demand Registration does not become effective or is not maintained in effect for the respective periods set forth in Section 3(c), in which case the relevant Holder(s) will be entitled to an additional Demand Registration pursuant hereto. Following the time that the Company file a becomes eligible for use of Form S-3 registration statement (or any successor form), any Holder or group of Holders holding, in the aggregate, ten percent (10%) or more of the Initial Outstanding Amount, shall have the right to request the Company to register under and in accordance with respect to outstanding the provisions of the Securities Act all or any portion of the Registrable Securities designated by such Holder(s); provided, however, that the estimated fair market value of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of the Registrable Securities requested to be registered is at least $5 10 million (or the entire amount of Registrable Securities then owned by the Holders if the estimated fair market value of the remaining Registrable Securities is less than $10 million), then provided, however, that there shall be no more than five (5) Demand Registrations pursuant to this Agreement.
(ii) Upon receipt of a Demand Notice, the Company shall promptly (i) and in any event within ten (10) days after Business Days from the date of receipt of such request is givenDemand Notice), give notify all other Holders of the 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 connection with any Demand Registration in which more than one Holder participates, in the event that such Demand Registration involves an underwritten offering and the managing underwriter or underwriters participating in such offering advise in writing the Holders of Registrable Securities to be included in such offering 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 Registrable Securities to be offered shall be distributed first, amongst the participating Holders pro rata according to each Holder’s overall percentage of participating Registrable Securities and second, amongst holders of any securities included by the Company (whether for its own account or otherwise) that are not Registrable Securities in any such offering. In the event of such a pro-rata distribution, to the extent that any Holder (or Holders) has not submitted a Demand Notice Notice, or withdraws from the underwriting, then those Shares that would have been allocated pro-rata to all Holders other than the Initiating Holders non-participating Holder if they had participated shall be distributed first amongst the participating Holders, pro rata according to each participating Holder’s overall percentage of participating Registrable Securities and second, amongst holders of any securities included by the Company (iiwhether for its own account or otherwise) as soon as practicable, and that are not Registrable Securities in any event such offering.
(b) The Company, within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date on which the Company receives a Demand Notice given by Holders in accordance with Section 3(a), shall file with the SEC, and the Company shall thereafter use its commercially reasonable efforts to cause to be declared effective as promptly as practicable, a Registration Statement on the appropriate form for the registration and sale, in accordance with the intended method or methods of distribution, of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration”). Any Demand Registration may, at the request of the Holders submitting the Demand Notice is givenNotice, and in each case, subject be a Shelf Registration to the limitations extent permitted by the rules and regulations of Sections 2.1(c) and 2.3the SEC.
(c) Notwithstanding the foregoing obligations, if the The Company furnishes shall use commercially reasonable efforts to Holders requesting a registration keep each Registration Statement filed pursuant to this Section 2.1 3 continuously effective and usable for the resale of the Registrable Securities covered thereby (i) in the case of a certificate signed Registration that is not a Shelf Registration, for a period of one hundred twenty (120) days from the date on which the SEC declares such Registration Statement effective and (ii) in the case of a Shelf Registration, for a period of two (2) years from the date on which the SEC declares such Registration Statement effective, in either case (x) until such earlier date as all of 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. The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the Company’s chief executive officer stating aggregate number of days of all Delay Periods and all Interruption Periods occurring with respect to such Registration and such period and any extension thereof is hereinafter referred to as the “Effectiveness Period”.
(d) The Company shall be entitled to postpone the filing of any Registration Statement otherwise required to be prepared and filed by the Company pursuant to this Section 3, or suspend the use of any effective Registration Statement under Section 2 or this Section 3, for a reasonable period of time (a “Delay Period”), (i) if the Company has notified the Holders that in the good faith judgment of the Board Company, it would be materially detrimental to the Company and or its stockholders security holders for such registration statement to either become effective or remain effectivebe effected at such time, then in which event the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, registration for a period of not more than 60 days; provided, that such right to delay a registration pursuant to this clause (d)(i) shall be exercised by the Company only if the Company has generally exercised (or is concurrently exercising) similar black-out rights against holders of similar securities that have registration rights, if any or (ii) during any Scheduled Black-Out Period; provided, that the total number of days that any such suspension, deferral or delay in registration pursuant to clauses (d)(i) and d(ii) in the aggregate may be in effect in any 180 day period shall not exceed 60 days.
(e) Notwithstanding any provision of this Agreement to the contrary, if the Company is required to file a post-effective amendment to a Registration Statement to incorporate the Company’s quarterly and annual reports and audited financial statements on Form 10-Q and Form 10-K, the Company may (A) postpone or suspend the filing of such Registration Statement for a period not to exceed thirty (30) consecutive days or (B) postpone or suspend effectiveness of such Registration Statement for a period not to exceed twenty (20) consecutive days; provided that the Company may not postpone or suspend effectiveness of a Registration Statement pursuant to this clause (e) for more than sixty (60) days after in the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice aggregate in any twelve (12) twelve-month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationperiod.
(df) The Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to effect, or to take any action to effect, any registration such Registration pursuant to this Section 2.1(a3, in any particular jurisdiction in which the Company would be required to execute a general consent to service of process or qualify to do business in effecting such Registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder.
(g) Without prior written notice, the Company shall not include any securities (iwhether for its own account or otherwise) during that are not Registrable Securities in any Registration Statement filed pursuant to this Section 3. Any such securities so included shall be subject to the period that is sixty cut-back provisions of Section 3(a)(ii).
(60h) days before the Company’s good faith estimate Holders of a majority in number of the date of filing ofRegistrable Securities to be included in a Registration Statement pursuant to this Section 3 may, and ending on a date that is one hundred eighty (180) days after at any time prior to the effective date ofof the Registration Statement relating to such Registration, revoke such request by providing a Company-initiated registration, provided that written notice to the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of revoking such request. A registration Any such Demand Request so withdrawn shall not be counted as “effected” for purposes of determining the number of requests for registration to which the Holders of Registrable Securities are entitled pursuant to this Section 2.1(d3 if the Holders of Registrable Securities who revoked such request reimburse the Company 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 (i) until such time as the applicable registration statement has been declared effective Company’s failure to comply in any material respect with its obligations hereunder or (ii) the institution by the SECCompany of a Delay Period or the occurrence of any Interruption Period, unless the Initiating Holders withdraw their request for such registration, elect reimbursement shall not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)required.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date filing of the registration statement for the IPOInitial Registration Statement, the Company receives a request from Holders Holder of at least thirty-five percent (35%) of the Additional Registrable Securities then outstanding (an “Initiating Holder”) that the Company file a Form S-1 registration statement Registration Statement with respect to at least thirty-five percent (35%) of the outstanding Additional Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 millionsuch Initiating Holder not already covered by an existing Registration Statement, then the Company shall shall, (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders Holder, and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holdersgiven, file a Form S-1 S-3 registration statement under the Securities Act (except if the Company is then ineligible to register for resale of the Additional Registrable Securities on Form S-3, in which case such registration shall be on such other form available to the Company to register for resale of the Additional Registrable Securities as a secondary offering) subject to the provisions of Section 3(d) covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Additional Registrable Securities requested to be included in such registration by the Initiating Holder and any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice notice pursuant to clause (i) above is given, and in each case, subject to the limitations of Sections 2.1(c3(b) and 2.3(c). Upon the request of any Holder that Additional Registrable Securities be registered pursuant to this Section 3(a), all such Additional Registrable Securities shall thereafter be Registrable Securities for all purposes under this Agreement.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 3 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement Registration Statement to either become effective or remain effective for as long as such Registration Statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty ninety (6090) days after the request of the Initiating Holders Holder is given; provided, however, that the Company may not invoke this right more than twice once in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days)period; and provided further that (x) the Company shall not register any securities or instruments for its own account or that of any other stockholder during such ninety (90) day period other than an Excluded Registrationpursuant to a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (y) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Additional Registrable Securities; or (z) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.
(dc) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A3(a) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).ninety
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at At any time one hundred eighty (180) days after the effective date of the registration statement for the IPOJune 1, 1998, the Company receives Holders shall have the right to request (each such request, a request from Holders of at least thirty-five percent (35%"Registration Demand") of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement under the Securities Act in respect of all or any portion of such Holder's Eligible Securities; provided that if any Holders shall request that a portion, but not all, of its Eligible Securities be registered in accordance with respect this Section 7.1 (including a requested Takedown pursuant to subsection (c)(ii) below), such portion shall include not less than two hundred and fifty thousand (250,000) shares of Eligible Common Stock (or such lesser number of such shares having a market valuation of at least thirty-five percent (35%) $5,000,000 as of the Registrable date the Registration Demand is made, based on the Closing Price on such date). A Registration Demand shall specify the number of shares of Eligible Common Stock (and, in the case of a Registration Demand by the Initial Holder, the number of Warrants) that each such Holder proposes to sell in the offering. If no Shelf Registration Statement shall be effective as of the date of the Registration Demand, the demanding Holders may elect to register such Eligible Securities in accordance with either Section 7.1(c)(i) or Section 7.1(d). If a Shelf Registration Statement shall be effective as of the date of the Registration Demand, then outstanding all demanding Holders shall be deemed to have elected to register their Eligible Securities pursuant to Section 7.1(c)(ii). The Holders may make in the aggregate two (2) Registration Demands pursuant to Sections 7.1(c)(i) and 7.1(d) and four (4) Registration Demands per year pursuant to an existing Shelf Registration Statement pursuant to Section 7.1(c)(ii) for which the anticipated aggregate offering priceCompany will pay and bear all costs and expenses in accordance with Section 8.3 and thereafter the Holders may make an unlimited number of Registration Demands for which such requesting Holders shall pay and bear all costs and expenses.
(b) Upon receipt of a Registration Demand (other than a Takedown), net of Selling Expenses, would exceed $10 million, then the Company shall give written notice thereof to all of the other Holders at least thirty (i30) days prior to the initial filing of a Registration Statement relating to such Registration Demand. Each of the other Holders shall have the right, within ten twenty (1020) days after the date delivery of such notice, to request that the Company include all or a portion of such Holder's Eligible Securities in such Registration Statement. Upon receipt of a Registration Demand that is givena Takedown, a representative of the selling holders shall give written notice thereof (the “Demand Notice”) to all of the other Holders at least three (3) Business Days prior to the initial filing of a prospectus relating to such Registration Demand. Each of the other than Holders shall have the Initiating Holders and right, within one (ii1) Business Day after the delivery of such notice, to request that the Company include all or a portion of such Holder's Eligible Securities in such Registration Statement.
(i) As promptly as soon as practicable, practicable and in any no event within later than sixty (60) days after the date such request is given by Company receives a Registration Demand electing to register Eligible Securities pursuant to this paragraph (c), the Initiating Holders, Company shall file a Form S-1 registration statement under the Securities Act covering a "shelf" registration statement (the "Shelf Registration Statement") providing for the registration and the sale on a continuous or delayed basis of all Registrable the Eligible Securities, pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the SEC (the "Shelf Registration"). The Company agrees to use its reasonable best efforts to cause such Shelf Registration Statement to become or be declared effective as soon as practicable but no later than 75 calendar days after the filing (the "75 Day Effective Date") and to keep such Shelf Registration continuously effective for a period ending on the occurrence of the earlier of: (x) the third anniversary of such Registration Demand and (y) notification by all of the requesting Holders that such Holders have sold all of the Eligible Securities owned by them. The Company further agrees to supplement or make amendments to the Shelf Registration Statement and the prospectus included therein (x) as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period set forth in the previous sentence and (y) as may be required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration or by the Securities Act or rules and regulations thereunder for shelf registration. The Company agrees to furnish to the Holders of the securities registered thereby copies of any such supplement or amendment (but excluding any periodic reports required to be filed with the SEC under the Exchange Act of 1934) so that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Initial Holder, or if the Initial Holder is no longer a Holder, the Holders, through the Representative(s), have a reasonable opportunity to comment thereon prior to its being used and/or filed with the SEC.
(ii) As promptly as specified by notice given by each such Holder to practicable after the Company within twenty receives a Registration Demand from a Holder or Holders pursuant to which a Holder is deemed to have elected to register Eligible Securities pursuant to an existing Shelf Registration Statement (20) days of a "Takedown"), the date the Demand Notice is given, and in each caseCompany shall, subject to the limitations Takedown Blackout Period described below, file a Prospectus with the SEC and otherwise comply with the Securities Act and all rules, regulations and instructions thereunder applicable to such Takedown. In the event that no Prospectus or other filing is required nor any other action necessitating the Company's participation is required to effect a sale of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible Eligible Securities pursuant to use a Form S-3 registration statementan effective Shelf Registration Statement filed pursuant to Section 7.1(c)(i), each selling Holder agrees to provide the Company receives a request from Holders of with at least ten percent three (10%3) Business Days' notice of the Registrable proposed sale (which may or may not include the amount of Eligible Securities then outstanding to be registered) pursuant to the effective Shelf Registration Statement; provided, however, that the Company file shall, subject to Section 7.3(g), have the right to postpone any such sale whether before or after the filing of the applicable Prospectus or Shelf Registration Statement for a Form S-3 registration statement with respect reasonable period of time not to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall exceed ninety (90) days (a "Takedown Blackout Period") if: (i) within ten the Company determines in its good faith judgment that it would, in connection with such sale, be required to disclose in such Registration Statement (10or any prospectus supplement to be used in connection therewith) days after the date such request is given, give a Demand Notice information not otherwise then required by law to all Holders other than the Initiating Holders be publicly disclosed and (ii) as soon as practicable, and in any event within forty-five either (45x) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it of Directors of the Company, such disclosure would be materially detrimental to adversely affect any material corporate development or business transaction contemplated by the Company and its stockholders for such registration statement to either become effective or remain effective, then (y) the Company has a bona fide purpose for preserving as confidential such information; provided further that the Takedown Blackout Period shall have earlier terminate upon the right to defer taking action with respect to completion or abandonment of the relevant corporate development or business transaction or upon public disclosure by the Company or public disclosure by the Company or public admission by the Company of such filing, information specified in (i) above.
(d) As promptly as practicable and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more in no event later than sixty (60) days after the request Company receives a Registration Demand electing to register Eligible Securities pursuant to this Section 7.1(d), the Company shall file with the SEC a Registration Statement, on any form that shall be available and appropriate for the sale of the Initiating Eligible Securities in accordance with the intended method of distribution thereof. The Company shall include in such Registration Statement all of the Eligible Securities of such requesting Holders is giventhat such Holders have requested to be included therein pursuant to Sections 7.1(a) and 7.1(b); provided, however, that that, if the Company may not invoke this right more than twice in any twelve (12) month period (which requested registration involves an underwritten offering, the Eligible Securities to be registered may be for consecutive sixty reduced if the managing underwriter delivers a notice (60a "Cutback Notice") day periods aggregating pursuant to one hundred twenty (120) daysSection 7.1(g); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) . The Company shall not use its reasonable best efforts to cause each such Registration Statement to be obligated declared effective (and to effectobtain acceleration of such effectiveness) as soon as practicable but no later than 75 days after filing such Registration Statement and to keep such Registration Statement continuously effective and usable for resale of such Eligible Securities, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the for a period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after from the date on which the SEC declares such Registration Statement effective date ofor such shorter period as is necessary to complete the distribution of the securities registered thereunder.
(e) The Initial Holder or, if the Initial Holder is not a Company-initiated registrationselling holder, the Representative(s) shall determine the method of distribution of Eligible Securities pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten offering, the investment banker or investment bankers and manager or managers that will administer such offering will be selected by the Initial Holder or, if the Initial Holder is not a selling holder, the Representative(s); provided that the Persons so selected shall be reasonably satisfactory to the Company.
(g) In the event that the proposed offering is an underwritten offering and includes securities to be offered for the account of the Company is actively employing (the "Company Shares"), the provisions of this Section 7.1(g) shall be applicable if the managing underwriter delivers a Cutback Notice stating that, in good faith commercially reasonable efforts its opinion, the aggregate number of shares of Eligible Common Stock, plus the Company Shares proposed to cause be sold therein, exceeds the maximum number of shares specified by the managing underwriter in such Cutback Notice that may be distributed without adversely affecting the price, timing or distribution of the Common Stock being distributed. If the managing underwriter delivers such Cutback Notice, the number of shares of Eligible Common Stock requested to be registered and Company Shares shall be reduced in the following order until the number of shares to be offered has been reduced to the maximum number of shares specified by the managing underwriter in the Cutback Notice: first, the Company Shares and second, the Eligible Common Stock in proportion to the respective number of shares of Eligible Common Stock that each Holder has requested to be registered.
(h) The Company will pay all Registration Expenses (as set forth in Section 8.3) in connection with a registration under this Section 7.1.
(i) No Registration Demand (other than a Takedown) may be made until the expiration of six (6) months following the completion of the distribution of the securities registered under any Registration Statement that has been filed and has become effective pursuant to a prior Registration Demand.
(j) A Registration Demand will not be deemed satisfied (and will not count for purposes of the limitations in Section 7.1(a)) (i) unless a registration statement with respect thereto has become effective and has been kept continuously effective for a period of at least 180 days (or such shorter period which shall terminate when all Eligible Securities covered by such registration statement to become effective; have been sold), (ii) if, after it has become effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Company SEC or other governmental agency or court for any reason not attributable to the selling holders participating in such registration and has effected two registrations pursuant to Section 2.1(a) not thereafter become effective, or (iii) if the Initiating Holders propose conditions to dispose closing specified in the relevant underwriting or agency agreement entered into in connection with such offering are not satisfied or waived, other than by reason of shares a breach of Registrable Securities that may be immediately registered such agreement by the selling holders participating in such offering or wilful failure on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate part of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing selling holders participating in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)offering.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at (i) HEI shall have the right, on not more than four occasions in the aggregate, and no more frequently than once during any time one hundred eighty six-month period, and (180ii) days after the effective date Minority Stockholders as a group shall have the right (though such right need not be jointly exercised by the Minority Stockholders), on not more than two occasions in the aggregate (it being understood and agreed that two or more Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of the registration statement a Demand shall be deemed to be a single Demand for the IPOall purposes hereof), and no more frequently than once during any six-month period, to require the Company receives to register for offer and sale under the Securities Act (a request from Holders of at least thirty-five percent (35%"Demand") all or a portion of the Registrable Securities held by such Stockholder, subject to the restrictions set forth herein; provided that no Stockholder shall be entitled to make a Demand hereunder unless the Registrable Securities subject to such Demand represent at least 7% of the aggregate shares of Company Common Stock then outstanding issued and outstanding. As promptly as practicable after the Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a "Demand Notice"), a copy of which shall have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company file a Form S-1 registration statement with respect register for offer and sale under the Securities Act Registrable Securities, subject to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering priceSection 4.1(b), net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten use all reasonable efforts to file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such form as the Company may reasonably deem appropriate (10provided that the Company shall not, unless the Company otherwise determines, be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) days and, thereafter, (ii) after the filing of an initial version of the Registration Statement, use 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 request is givenRegistration Statement; provided, give notice however, that no Demanding Stockholder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Demanding Stockholder has made an Election. Subject to Section 4.1(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 such Demanding Stockholder for resales of Registrable Securities for an Effectiveness Period ending on the earlier of (i) 30 days from the “Demand Notice”) to all Holders other than the Initiating Holders Effective Time of such Registration Statement and (ii) such time as soon as practicableall of such securities have been disposed of by the selling securityholders.
(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, if the Company determines based upon the advice of counsel that it would be advisable to disclose in the Registration Statement a planned or proposed financing, acquisition or other corporate transaction or other material information, and the Company shall have determined in good faith that such disclosure is not in the best interests of the Company and its stockholders; 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 the aggregate. The Company shall advise the Demanding Stockholder of any such determination as promptly as practicable after such determination.
(c) 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 subject to a Demand 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 in such offering (provided that, in the event within sixty of a joint Demand, the Applicable Securities included shall be allocated pro rata among the Demanding Stockholders on the basis of the relative number of Applicable Securities each such Demanding Stockholder has requested to be included in such Registration).
(60d) days after The Company may include in any registration requested pursuant to Section 4.1(a) hereof other securities for sale for its own account or for the date such request is given 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 Initiating HoldersDemanding Stockholder, file a Form S-1 registration statement under together with other securities for sale for the account of the Company or any other Person, 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 Act covering all Registrable and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, the Applicable Securities that the Initiating Holders requested to be registered by the Demanding Stockholder and (ii) second, any additional Registrable other securities requested to be included in such Registration.
(e) A Demanding Stockholder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 4.1(b), or (iv) if such Demanding Stockholder is prevented pursuant to Section 4.1(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Stockholder shall nonetheless be deemed to have been effected (and, therefore, requested) for purposes of Section 4.1(a) hereof if such Demanding Stockholder withdraws any Demand (A) pursuant to clause (i) of the preceding sentence after the Commission filing fee is paid with respect thereto or (B) pursuant to clause (iv) of the preceding sentence in circumstances where at least 50% of the Applicable Securities requested to be included in such registration Registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is givenDemanding Stockholder could have been included, and in each case, subject (x) the Company has not availed itself of Section 4.1(b) with respect to such Registration request or (y) the Company has availed itself of Section 4.1(b) 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 4.1(b). If a Demanding Stockholder withdraws a Demand 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 Demanding Stockholder shall be entitled to participate in such Registration pursuant to Section 4.2, but in such case the Intended Offering Notice shall be required to be given to such Demanding Stockholder at least five business days prior to the limitations anticipated filing date of Sections 2.1(c) the Registration Statement, or if such Registration Statement has already been filed, within 10 business days after receipt of the request to withdraw Demand from such Demanding Stockholder and 2.3such Demanding Stockholder shall be required to give the Piggy-back Notice no later than 3 business days after the Company's delivery of such Intended Offering Notice.
(bf) Form S-3 In the event that any Registration pursuant to this Section 4.1 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Stockholder, and the other co-lead underwriter shall be selected by the Demanding Stockholder, provided that, in the event of a joint Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives other co-lead underwriter shall be selected by a request from Holders majority in interest (by reference to the number of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Applicable Securities requested to be included in such registration by any other Holdersthe Registration) of the Demanding Stockholders, as specified by notice given by each such Holder and shall be reasonably acceptable to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed Company. Any additional co-managing underwriters shall be selected by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If Subject to the conditions of this Section 2.2, if at any time one hundred eighty (180) days after the effective earlier of (i) two (2) years after the date of this Agreement or (ii) six (6) months following the closing date of the registration statement for the IPOInitial Offering, the Company receives shall receive a written request from the Initiating Holders of at least thirty-five percent (35%or the Initiating Preferred F Holder(s) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities having an aggregate proposed offering price to the public (net of underwriters’ discounts or commissions) of at least five million dollars ($5,000,000) (a “Qualified Public Offering”), then the Company shall, within ten (10) business days of the receipt thereof, give written notice of such request to all Holders, other than the Applicable Initiating Holders, and subject to the limitations of this Section 2.2, use commercially reasonable efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that the all Applicable Initiating Holders requested request to be registered and any additional all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Applicable Initiating Holder’s or Applicable Initiating Holders’ Registrable Securities requested to be included as are specified in such registration by request, together with all or such portion of the Registrable Securities of any other Holders, Holders joining in such request as are specified in a written request received by notice given by each such Holder to the Company within twenty (20) days of the date mailing of the Demand Notice is given, and in each case, subject Company’s notice pursuant to the limitations of Sections 2.1(c) and 2.3this Section 2.2(a).
(b) Form S-3 DemandIf the Applicable Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. If at any time when it is eligible to use a Form S-3 registration statementIn such event, the Company receives right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by such Holder and the Applicable Initiating Holders holding a request from Holders of at least ten percent (10%) majority of the Registrable Securities then outstanding that requested by such Applicable Initiating Holders to be registered) to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Applicable Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company file that marketing factors require a Form S-3 registration statement with respect limitation of the number of securities to outstanding be underwritten (including Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, Securities) then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to so advise all Holders other than the Initiating Holders and (ii) as soon as practicableof Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in any event within forty-five (45) days after the date underwriting shall be allocated first to such request is given by Holders of Preferred F Registrable Securities, on a pro rata basis based on the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all number of Preferred F Registrable Securities requested to be registered by all such Holders (including the Initiating Preferred F Holder(s)) and, second to the Holders of such Registrable Securities other than the Preferred F Registrable Securities, on a pro rata basis based on the number of Registrable Securities other than the Preferred F Registrable Securities requested to be registered by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration by any shall not be reduced unless all other Holders, as specified by notice given by each such Holder to securities of the Company within twenty (20) days of are first entirely excluded from the date underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3registration.
(c) Notwithstanding the foregoing obligationsforgoing, if the Company furnishes shall not be required to Holders requesting effect a registration pursuant to this Section 2.1 a certificate signed by 2.2:
(i) prior to the Company’s chief executive officer stating earliest of (A) the date that in is six (6) months following the good faith judgment closing date of the Board it would be materially detrimental to Initial Offering, (B) the Company expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering, and its stockholders for such registration statement to either become effective or remain effective, then (C) the Company shall have date that is two (2) years after the right to defer taking action date hereof;
(ii) with respect to such filinga request by Initiating Holders, after the Company has effected one (1) registration pursuant to this Section 2.2, and any time periods such registration has been declared or ordered effective; provided, however, that all Registrable Securities requested to be registered were registered in the registration; and with respect to filing a request by Initiating Preferred F Holders, after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registration has been declared or effectiveness thereof shall ordered effective; provided, however, that, with respect to each registration, all Registrable Securities requested to be tolled correspondingly, for a registered were registered in the registration;
(iii) during the period of not more than starting with the date sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating prior to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a the date that is one hundred eighty (180) days after following the effective date ofof the registration statement pertaining to the Initial Offering (or such longer period as may be determined pursuant to Section 2.11 hereof), a Company-initiated registration, if requested by the managing underwriter; provided that the Company is actively employing in makes commercially reasonable good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).effective;
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If the Company receives, at any time one hundred eighty beginning six (1806) days months after the effective date of the registration statement for the IPO, from the Company receives a request from Holders of at least thirty-five percent (35%) a majority in interest of the Registrable Securities (calculated on an as converted basis) then outstanding outstanding, a request in writing that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) all or part of the Registrable Securities then outstanding in which held by them having an aggregate value of at least $5,000,000 shall be registered for trading under the anticipated aggregate offering priceSecurities Act, net then, within seven (7) days after receipt of Selling Expensesany such request, would exceed $10 million, then the Company shall give written notice of such request to the other Holders, and shall include in such registration all Registrable Securities held by all such Holders who wish to participate in such demand registration and provide the Company with written requests for inclusion therein within fifteen (i) within ten (1015) days after the date receipt of the Company's notice. Thereupon, the Company shall use its best efforts to effect the registration of all Registrable Securities, as to which it has received requests for registration under the Securities Act.
(b) Notwithstanding any other provision of Section 1.3(a), if the managing underwriter, if any, advises the Company in writing that marketing factors require an Underwriters Cutback, then there shall be excluded from such request is givenregistration and underwriting, give notice thereof (to the “Demand Notice”) extent necessary to all Holders other than satisfy such limitation, first, securities of the Initiating Holders and (ii) as soon as practicableCompany not held by the Holders, to the extent necessary, and second, Registrable Securities, to the extent necessary (on a pro rata basis according to the respective holdings of the Holders of Registrable Securities at the time of such registration); provided however, that in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to must be included in such registration by prior to any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days shares of the date the Demand Notice is given, and in each case, subject Company. The Holders shall not be entitled to the limitations of Sections 2.1(crequest a registration under Section 1.3(a) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then if the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder furnish to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating CEO of the Company confirming that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company and or its stockholders shareholders for such registration statement to either become effective or remain effectivebe effected at such time, then in which event the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to the filing or effectiveness thereof shall be tolled correspondingly, of the registration statement for a period of not no more than sixty ninety (6090) days after the receipt of the request of the Initiating Holders is givenunder Section 1.3(a); provided, however, that the Company may not invoke this right make more than twice one (1) such deferral in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationperiod.
(dc) The In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) 1.3(a):
(i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two (2) registrations pursuant to Section 2.1(a) or 1.3(a);
(iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (Aii) during the period that is thirty ending (30A) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety six (906) days months after the effective date of, of a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts registration subject to cause such registration statement to become effective Section 1.3(a) hereof or (B) six (6) months after the effective date of any other registration statement pertaining to Ordinary Shares of the Company, or such shorter periods if such shorter periods are acceptable to the underwriters of such offering;
(iii) in any jurisdiction in which the Company has effected two registrations pursuant would be required to Section 2.1(b) within the twelve (12) month period immediately preceding the date execute a general consent to service of process in effecting such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SECregistration, qualification or compliance, unless the Initiating Holders withdraw their Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder; or
(iv) if such request for does not cover shares representing a market value at the time of such registration, elect not request equal to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes a minimum of this Section 2.1(d)$5,000,000.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If Subject to the conditions of this Section 3.2, if the Company shall receive at any time and from time to time on or following the earlier of (i) six months after the effective date of the Company's initial public offering of the Company's common stock (the "INITIAL OFFERING"), or (ii) June 5, 2000, a written request from the Series D Investors (or any assignee pursuant to Section 3.10 hereof) holding more than forty percent (40%) of the Series D Preferred Stock (or common stock issued upon conversion of the Series D Preferred Stock or a combination of such common stock and Series D Preferred Stock) then outstanding (the "REQUESTING HOLDERS") that the Company file a registration statement under the Securities Act covering the registration of all or any portion of the Registrable Securities, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of Section 3.2(c) effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered.
(b) Subject to the conditions of this Section 3.2, if the Company shall receive at any time after the earlier of (i) the date one hundred eighty (180) days after following the effective date of the registration statement for pertaining to the IPOCompany's Initial Offering, or (ii) October 25, 1999, a written request from the Series A Investors, the Company receives a request from Holders of at least thirty-five Series B Investors, the Series C Investors and/or the Series E Investors (or any assignee thereof pursuant to Section 3.10 hereof) holding more than fifteen percent (3515%) of the Registrable Securities Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and/or Series E Preferred Stock (or common stock issued upon conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and/or Series E Preferred Stock or a combination of such common stock and Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and/or Series E Preferred Stock) then outstanding (the "INITIATING HOLDERS") that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering the registration of all or any portion of the Registrable Securities, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of Section 3.2(c), effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Initiating Holders requested request to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3registered.
(c) Notwithstanding If the foregoing obligationsInitiating Holders or Requesting Holders, if respectively, intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company furnishes to Holders requesting as a registration part of their request made pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company 3.2 and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have include such information in the written notice referred to in Section 3.2(a) and Section 3.2(b). In such event, the right of any Holder to defer taking action with respect to include its Registrable Securities in such filing, and any time periods with respect to filing or effectiveness thereof registration shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).conditioned upon such
Appears in 1 contract
Sources: Investors' Rights Agreement (Women Com Networks Inc)
Demand Registration. (ai) Form S-1 Demand. If at At any time and from time to time commencing one hundred and eighty (180) days after the effective date consummation of an Initial Public Offering upon written notice to the registration statement for the IPO, the Company receives Corporation (a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all delivered by a Qualified Holder or Qualified Holders other than requesting that the Initiating Holders and Corporation effect the registration (iia “Demand Registration”) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering (other than pursuant to a Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of any or all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that held by such Qualified Holder(s), the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities Corporation shall promptly (but in any event, not later than five (5) Business Days following the Corporation’s receipt of such Holders having an anticipated aggregate offering price, net Demand Notice) give written notice of Selling Expenses, the receipt of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all other Holders other than the Initiating Holders and that, to its knowledge, hold Registrable Securities (ii) as soon as practicableeach, and in any event a “Demand Eligible Holder”). The Corporation shall use its commercially reasonable efforts to, within forty-five (45) days after following the date receipt of such request is given by the Initiating HoldersDemand Notice (subject to compliance with any applicable covenants in any underwriting agreement for a previous registration effected under this Section 6(a) or under Section 6(b)), file a Form S-3 the appropriate Registration Statement (the “Demand Registration Statement”) subject to Section 6(a)(ii) and use its commercially reasonable efforts to effect, at the earliest practicable date, the registration statement under the Securities Act covering all and under the applicable state securities laws of (A) the Registrable Securities which the Corporation has been so requested to register by the Qualified Holder(s) in the Demand Notice, (B) all other Registrable Securities of the same class or series as those requested to be included in such registration registered by any other Holders, as specified the Qualified Holder(s) that the Corporation has been requested to register by notice the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given by each such Holder to the Company Corporation within twenty (20) days following the receipt of the date Corporation’s written notice of the receipt of the Demand Notice is givenand (C) any Registrable Securities to be offered and sold by the Corporation, and in each case, case subject to Section 6(a)(iv), all to the limitations extent required to permit the disposition (in accordance with the intended methods of Sections 2.1(cdisposition) and 2.3.
(c) of the Registrable Securities to be so registered. Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to anything in this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental 6 to the Company and its stockholders for such registration statement to either become effective or remain effectivecontrary, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company Corporation shall not be obligated to effect(I) effect more than one (1) Demand Registrations in any six (6)-month period, or to take (II) effect any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is Demand Registration within ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding from the date of such request. A registration shall not be counted as “effected” for purposes effectiveness of this Section 2.1(da Demand Registration Statement or (III) until such time as comply with a Demand Notice to the applicable registration statement extent the Corporation has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement already complied with five (5) Demand Notices pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)the terms hereof.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If Subject to the terms and conditions of this Agreement (including Section 1.2(c)), at any time one hundred eighty (180) days on or after the effective second anniversary of the Closing Date, upon written notice to the Company (a “Demand Notice”) delivered by (i) Holders beneficially owning not less than ten percent of the then outstanding shares of Common Stock in the aggregate or (ii) a Holder that, together with its Affiliates, is both a Ten Percent Holder as of the date of this Agreement and could reasonably be considered an “Affiliate” (disregarding the proviso in the first sentence of the definition thereof) of the Company as of the date of such Demand Notice (an “Affiliated Holder”), which for the avoidance of doubt shall include any Holder with respect to which there is a director serving on the board of directors of the Company (the “Board”) who was appointed by, or is otherwise employed by or affiliated with, such Holder or its Affiliates (each of the foregoing being referred to as the “Initiating Holders”) at any time requesting that the Company effect the registration statement for (a “Demand Registration”) under the IPOSecurities Act of any or all of the Registrable Securities held by such Holders, the Company receives shall promptly (but in any event, not later than five Business Days following the Company’s receipt of such Demand Notice) give written notice of the receipt of such Demand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Company shall promptly file the appropriate registration statement (the “Demand Registration Statement”) and use reasonable best efforts to effect, at the earliest practicable date, the registration under the Securities Act and under the applicable state securities laws of (A) the Registrable Securities which the Company has been so requested to register by the Initiating Holders in the Demand Notice, and (B) all other Registrable Securities which the Company has been requested to register by the Demand Eligible Holders by written request from Holders (the “Demand Eligible Holder Request”) given to the Company within ten Business Days after the giving of at least thirty-five percent such written notice by the Company, in each case subject to Section 1.2(e), all to the extent required to permit the disposition (35%in accordance with the intended methods of disposition) of the Registrable Securities then outstanding that to be so registered.
(b) The Company may effect any requested Demand Registration using Form S-3 whenever the Company file is eligible to register for resale the Registrable Securities on Form S-3 (unless the Initiating Holder(s) or the managing underwriter(s) of such offering requests the Company to use a Form S-1 registration statement with respect in order to at least thirty-five percent (35%) sell all of the Registrable Securities then outstanding in requested to be sold). Subject to the terms and conditions of this Agreement (including Section 1.2(c)), for so long as the Company is eligible to register for resale the Registrable Securities on Form S-3, each Ten Percent Holder shall have the right to request an unlimited number of Demand Registrations using Form S-3, which shall not constitute a Demand Registration for purposes of determining the anticipated aggregate offering pricenumber of Demand Registrations limited by Section 1.2(c).
(c) Notwithstanding anything herein to the contrary, net of Selling Expenses, would exceed $10 million, then the Company shall only be required to (i) within ten effect one Demand Registrations in any 6 month period, (ii) effect a total of not more than four Demand Registrations by (A) Holders beneficially owning not less than 10% of the outstanding shares of the Common Stock in the aggregate and (B) days after Affiliated Holders, and an additional three Demand Registrations by each Ten Percent Holder throughout the date term of this Agreement, and (iii) comply with a request for a Demand Registration (other than a request that the Company conduct an Initial Public Offering) if the Initiating Holders, together with all other Demand Eligible Holders that request Registrable Securities be included in the Demand Registration pursuant to Section 1.2(a), are requesting the registration of Registrable Securities, which is reasonably expected to result in aggregate gross proceeds in excess of $18.3 million.
(d) The Company shall use reasonable best efforts to keep the Demand Registration Statement continuously effective under the Securities Act for the period of time necessary for the underwriters or Holders to sell all the Registrable Securities covered by such request is givenDemand Registration Statement or such shorter period which will terminate when all Registrable Securities covered by such Demand Registration Statement have been sold pursuant thereto (including, give notice thereof if necessary, by filing with the SEC 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, any state securities or “blue sky” laws, or any other rules and regulations thereunder) (the “Effectiveness Period”). A Demand Notice”Registration requested pursuant to this Section shall not be deemed to have been effected (i) if the Registration Statement is withdrawn without becoming effective, (ii) if the Registration Statement does not remain effective in compliance with the provisions of the Securities Act and the laws of any state or other jurisdiction applicable to all Holders the disposition of the Registrable Securities covered by such Registration Statement for the Effectiveness Period, (iii) if, after it has become effective, such Registration Statement is subject to any stop order, injunction or other order or requirement of the SEC or other governmental or regulatory agency or court for any reason other than a violation of applicable law solely by any selling Holder and has not thereafter become effective, (iv) in the event of an underwritten offering, if the conditions to closing specified in the underwriting agreement entered into in connection with such registration are not satisfied or waived other than by reason of some wrongful act or omission by an Initiating Holder, (v) if the Company does not include in the applicable Registration Statement any Registrable Securities held by a Holder that is required by the terms hereof to be included in such Registration Statement, and (vi) if the Initiating Holders and Demand Eligible Holders have not been able to sell at least seventy five percent of the Registrable Securities that they have requested to sell in the Demand Notice or Demand Eligible Holder Request.
(e) Notwithstanding any other provision of this Section, if (i) the Initiating Holders intend to distribute the Registrable Securities covered by a Demand Registration by means of an underwritten offering and (ii) as soon as practicablethe managing underwriters advise the Company and the Initiating Holders that in their reasonable view, or, if such managing underwriters are unwilling to so advise the Company and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under if the Securities Act covering all Company concludes after consultation with such managing underwriters and the Holders of Registrable Securities proposed to be included in such offering that in the Company’s reasonable view, the number of shares of Common Stock proposed to be included in such offering (including Registrable Securities requested by Holders to be included in such offering and any securities that the Initiating Holders requested Company or any other Person proposes to be registered and any additional included that are not Registrable Securities) exceeds the number of shares of Common Stock which can be sold in an orderly manner in such offering within a price range acceptable to the Holders of a majority of the Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 millionRegistration, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to so advise all Holders other than the Initiating Holders and (ii) as soon as practicableDemand Eligible Holders with Registrable Securities proposed to be included in such underwritten offering, and shall include in any event within forty-five such offering the number of shares of Common Stock which can be so sold in the following order of priority: (45A) days after first, the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration underwritten offering by any other the Initiating Holders and the Demand Eligible Holders, which in the view of such underwriters or the Company, as specified by notice given applicable, can be sold in an orderly manner within the price range of such offering, pro rata among such Initiating Holders and Demand Eligible Holders on the basis of the number of Registrable Securities requested to be included therein by each such Initiating Holder and Demand Eligible Holder, and (B) second, Other Registrable Securities requested to be included in such underwritten offering to the Company within twenty (20) days extent permitted hereunder pro rata among the respective holders of such Other Registrable Securities on the basis of the date the Demand Notice is given, and in number of securities requested to be included therein by each case, subject to the limitations of Sections 2.1(c) and 2.3such holder.
(cf) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration The determination of whether any offering of Registrable Securities pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that Demand Registration will be an underwritten offering shall be made in the good faith judgment sole discretion of the Board it would be materially detrimental to Holders of a majority of the Company Registrable Securities included in such underwritten offering, and its stockholders for such registration statement to either become effective or remain effective, then Holders of a majority of the Company Registrable Securities shall have the right to defer taking action with respect (i) determine the plan of distribution, including the price at which the Registrable Securities are to such filingbe sold and the underwriting commissions, discounts and fees, and any time periods with respect (ii) select the investment banker(s) and manager(s) to filing administer the offering (which shall consist of one or effectiveness thereof more reputable nationally recognized investment banks, subject to the Company’s approval (which shall not be tolled correspondinglyunreasonably withheld, for a period conditioned or delayed)) and one firm of not more than sixty (60) days after the request counsel to represent all of the Initiating Holders is given(along with any reasonably necessary local counsel), in connection with such Demand Registration; provided, however, that the Company may shall select such investment banker(s), manager(s) and counsel (including local counsel) if such Holders of such majority cannot invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that so agree on the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationsame within a reasonable time period.
(dg) The Company shall not Any Holder whose Registrable Securities were to be obligated to effect, or to take included in any action to effect, any such registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).to
Appears in 1 contract
Sources: Registration Rights Agreement (Great Elm Capital Group, Inc.)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after Subject to the effective date conditions of this Section 6.01, and following the end of the registration statement for Company’s lock-up period with the IPOunderwriters of the Initial Offering in connection with the Company’s consummation of an Initial Offering (provided that if there are no underwriters or lock-up, this will be triggered upon the consummation of an Initial Offering), if the Company receives shall receive a written request from Holders any person or group of at least thirty-five percent persons beneficially owning, owning of record or having the right to acquire Registrable Securities that have not been sold to the public or any assignee of record of such Registrable Securities in accordance with Section 6.09 hereof (35%each, a “Holder”) of 10% of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement on Form S-1 or Form F-1 under the United States Securities Act of 1933, as amended (the “Securities Act”) or another offering document pursuant to any other applicable Laws and regulations (collectively, the “Applicable Listing Laws and Regulations”) covering the registration statement with respect to of at least thirty-five percent (35%) such number of the Registrable Securities then outstanding in which the having an anticipated aggregate offering price, net of all underwriting discounts and selling commissions applicable to the sale (“Selling Expenses”), would exceed of at least fifteen million dollars (US $10 million15,000,000), then the Company shall (i) shall, within ten (10) days after of the date receipt thereof, give written notice of such request is given, give notice thereof to all Holders (the “Demand Notice”) ), and subject to all Holders other than the Initiating Holders and limitations of this Section 6.01, (iix) as soon as practicable, and in any event within sixty (60) days after the date of such request is given by the Initiating Holders, file a Form S-1 or F-1 registration statement under the Securities Act covering registering all Registrable Registration Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is givenand (y) effect, as expeditiously as reasonably possible, the registration under the Securities Act or any other Applicable Listing Laws and in each case, subject Regulations of all Registrable Securities that all Holders request to the limitations of Sections 2.1(c) and 2.3be registered.
(b) Form S-3 DemandIf the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 6.01 or any request pursuant to Section 6.04 and the Company shall include such information in the written notice referred to in Section 6.01(a) or Section 6.04(a), as applicable. If at any time when it is eligible to use a Form S-3 registration statementIn such event, the Company receives a request from right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of at least ten percent (10%) a majority of the Registrable Securities then outstanding that held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 6.01 or Section 6.04, if the underwriter advises the Company file that marketing factors require a Form S-3 registration statement with respect limitation of the number of securities to outstanding be underwritten (including Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, Securities) then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to so advise all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be immediately registered included in the underwriting shall be allocated to the Holders of such Registrable Securities on Form S-3 pursuant to a request made pursuant to Section 2.1(bpro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to For purposes of Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of6.01(c)(i), a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes if, as a result of an exercise of the underwriter’s cutback provisions in this Section 2.1(d) until 6.01(b), fewer than all of the Registrable Securities that Holders have requested to be included in such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)are actually included.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand3.3.1. If at At any time one hundred eighty (180i) beginning six (6) months following the closing of the IPO and until the fifth (5th) anniversary thereafter, or (ii) prior to the passage of six (6) months following the closing of an IPO, subject to the restrictions imposed by the underwriters in connection with the IPO, including pursuant to any “lock-up” agreements (which restrictions may be waived by the underwriters), the Initiating Holders may request in writing that all or part of the Preferred Registrable Shares shall be registered for trading on any securities exchange on which Ordinary Shares are then listed by the Company. Any such demand must request the registration of shares in a minimum amount of five million United States dollars ($5,000,000). Within thirty (30) days of the delivery of such written request by the Initiating Holders, the Company shall give written notice of such request to all Holders of Registrable Shares, and subject to the limitations of this Section 3.3, use its reasonable efforts to effect, as promptly as reasonably possible, the registration under the Securities Act of the Preferred Registrable Shares that the Holders as are specified in the Initiating Holders’ request, together with the Registrable Shares of any Holder(s) joining in such request as are specified in a written request received by the Company within fifteen (15) days following delivery of the Company’s notice hereunder.
3.3.2. Notwithstanding any other provision of this Section 3.3, if the underwriter(s) advises the Company that marketing factors require a limitation of the number of Registrable Shares to be underwritten then the Company shall so advise all Holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of Preferred Registrable Shares that may be included in the underwriting shall be allocated to the Holders of such Preferred Registrable Shares so requesting to be registered on a pro rata basis, based on the number of Preferred Registrable Shares then held by all such Holders; provided, however, that the number of Preferred Registrable Shares held by the Holders of Preferred Registrable Shares to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Shares excluded or withdrawn from such underwriting shall be withdrawn from the registration. The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan) to be initiated after a registration requested pursuant to Section 3.3 and to become effective less than ninety (90) days after the effective date of the any registration statement for the IPOrequested pursuant to Section 3.3.
3.3.3. Notwithstanding to foregoing, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect shall not be required to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting effect a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to 3.3 (i) after the Company and its stockholders for such registration statement has effected two (2) registrations pursuant to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filingthis Section 3.3, and any time periods with respect to filing such registrations have been declared or effectiveness thereof shall be tolled correspondingly, for ordered effective; (ii) within a period of not more than sixty one hundred and eighty (60180) days after following the request effective date of the Initiating Holders is givena previous registration; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (iiii) during the period that is starting sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a the date that is one hundred eighty (180) days after following the effective date ofof a registration statement pertaining to the Company’s securities (but other than registration relating solely to employee benefit plans on Form S-8 or similar forms that may be promulgated in the future, or a Company-initiated registration, registration relating solely to a SEC Rule 145 transaction on Form F-4 or similar forms that may be promulgated in the future or that may apply under the laws of the applicable jurisdiction); provided that the Company is actively employing in makes reasonable good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iiiiv) if the Initiating Company shall furnish to Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 requesting a registration statement pursuant to this Section 3.3, an officer’s a request made pursuant certificate signed by the Chief Executive Officer stating that in the good faith judgment of the Board, it would be seriously detrimental to Section 2.1(b). The the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is more than ninety (90) days after receipt of the effective date of, a Company-initiated registration, request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company is actively employing no more than once in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the any twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)period.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If Parent shall receive at any time one hundred eighty (180) days after the effective date first anniversary of the registration statement for the IPOClosing Date, the Company receives a written request from the Holders of at least thirtytwenty-five percent of the A-1 Registrable Note Shares or fifty percent of the A-2 Registrable Note Shares (35%in either case, the “Initiating Note Holders”) that Parent file a Registration Statement under the Securities Act covering the registration of a number of Registrable Note Shares; provided that the sale of the Registrable Securities then outstanding that Note Shares requested to be registered would yield aggregate gross proceeds in excess of $10 million or, if the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) closing price of the Registrable Securities then outstanding Common Stock on the date of such request is less than the Signing Price, aggregate gross proceeds in which excess of the anticipated aggregate offering price, net product of Selling Expenses, would exceed (x) $10 million7.5 million and (y) the quotient of the closing price of the Common Stock on date of such request divided by the Signing Price, then the Company shall Parent shall:
(i) within ten (10) days after of the date receipt thereof, give written notice of such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and of Registrable Note Shares;
(ii) use commercially reasonable efforts to effect, as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering of all Registrable Securities Note Shares that the Initiating Holders requested thereof request to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each caseregistered, subject to the limitations of Sections 2.1(cSection 2.1(b), within twenty days of the mailing of such notice by Parent in accordance with Section 4.6; and
(iii) keep such Registration Statement effective for the shorter of 180 days or until the distribution contemplated in the Registration Statement has been completed; provided, however, that such 180-day period shall be extended for a period of time equal to (A) the period in which any Holder refrains from selling any securities included in such Registration Statement at the request of an underwriter of Common Stock (or other securities of Parent); (B) the period in which any Holder refrains from selling any securities included in such Registration Statement at the request of Parent to permit Parent to amend such Registration Statement; (C) the duration of any Black-Out Period during which the use of a prospectus was suspended or sales of Registrable Securities were not permitted by a selling Holder and 2.3(D) the periods for which effectiveness of the Registration Statement has been suspended as permitted by this Agreement.
(b) Form S-3 DemandIf the Initiating Note Holders demanding the registration requested under this Article 2 intend to distribute the Registrable Note Shares covered by their request by means of an underwriting, they shall so advise Parent as a part of their request made pursuant to Section 2.1(a) and Parent shall include such information in the written notice referred to in Section 2.1(a). If at any time when it is eligible The underwriter will be selected by Parent, subject to use the consent of a Form S-3 registration statementmajority in interest of the Initiating Note Holders (which will not be unreasonably withheld). In such event, the Company receives right of any Holder to include its Registrable Notes Shares in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Note Shares in the underwriting (unless otherwise mutually agreed by a request from Holders of at least ten percent (10%) majority in interest of the Initiating Note Holders and such Holder) to the extent provided in this Article 2. All Holders proposing to distribute Registrable Securities then outstanding Note Shares through such underwriting shall (together with Parent as provided in Section 2.5(e)) enter into an underwriting agreement in the form requested by the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2.1, if the underwriter advises the Initiating Note Holders in writing that marketing factors require a limitation of the Company file a Form S-3 registration statement with respect number of shares to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 millionbe underwritten, then the Company Initiating Note Holders shall (i) within ten (10) days after the date such request is given, give a Demand Notice to so advise all Holders other than of Registrable Note Shares which would otherwise be underwritten pursuant to this Section 2.1(b), and the number of shares of Registrable Note Shares that may be included in the underwriting shall be allocated first among the Initiating Note Holders and second among any other Holders of Registrable Note Shares, in proportion (ii) as soon nearly as practicable) to the amount of Registrable Note Shares owned by each Holder; provided, and in any event within forty-five (45) days after however, that if the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all number of shares of Registrable Securities requested Note Shares to be included in such registration by any other Holdersunderwriting shall be reduced, as specified by notice given by each such Holder to the Company within twenty (20) days no Registrable Note Shares of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3Initiating Note Holders shall be excluded until all other Registrable Note Shares have been excluded.
(c) Notwithstanding the foregoing obligationsforegoing, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company Parent shall have the right to defer taking action with respect to such filingthe filing of the Registration Statement under this Section 2.1, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondinglysuspend the use of the related prospectus, for during a period Black-Out Period occurring after receipt of not more than sixty (60) days after the request of the Initiating Holders is givenNote Holders; provided, however, provided that the Company Parent may not invoke this utilize such deferral or suspension right more than twice in any twelve (12) twelve-month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationperiod.
(d) The Company In addition, Parent shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.1(a) 2.1:
(i) after Parent has effected three registrations (two at the request of Holders of A-1 Registrable Note Shares and one at the request of Holders of A-2 Registrable Note Shares) pursuant to this Section 2.1 and such registrations have been declared effective; or
(ii) during the period that is starting with the date sixty (60) days before the Companyprior to Parent’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) 180 days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant subject to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)2.2.
Appears in 1 contract
Demand Registration. (ai) Form S-1 Demand. If Subject to the terms and conditions of this Agreement (including Section 2(a)(ii)), at any time one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of at least thirty-five percent third (35%3rd) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days anniversary of the date hereof, or if the Demand Notice is given, and in each case, subject Company consummates an Initial Public Offering prior to the limitations of Sections 2.1(cthird (3rd) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days anniversary of the date hereof, the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date ofcompletion of the Initial Public Offering, upon written notice to the Company (a Company-initiated registration, provided “Demand Notice”) delivered by an Initiating Holder or group of Initiating Holders at any time requesting that the Company is actively employing effect the registration (a “Demand Registration”) under the Securities Act of any or all of the Registrable Securities held by such Holders, the Company shall promptly (but in good faith any event, not later than five (5) Business Days of the Company’s receipt of such Demand Notice) give written notice of the receipt of such Demand Notice to all other Holders that, to its knowledge, hold at least 0.5% of the Company Common Shares then outstanding (each, a “Demand Eligible Holder”) and shall promptly file the appropriate registration statement (the “Demand Registration Statement”) and use its commercially reasonable efforts to cause such effect, at the earliest practicable date, the registration statement to become effective; under the Securities Act and applicable state securities laws of (iiA) after the Registrable Securities which the Company has effected two registrations pursuant been so requested to Section 2.1(a) or (iii) if register by the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during in the period that is thirty (30) days before the Company’s good faith estimate of the date of filing ofDemand Notice, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if all other Registrable Securities which the Company has effected two registrations pursuant been requested to register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Company within ten (10) Business Days or, to the extent the Company states in such written notice that such registration will be on Form S-3, five (5) Business Days, after the giving of such written notice by the Company, in each case subject to Section 2.1(b2(a)(v), all to the extent required to permit the disposition (in accordance with the intended methods of disposition) within of the twelve (12) month period immediately preceding the date of such request. A registration shall not Registrable Securities to be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)so registered.
Appears in 1 contract
Sources: Registration Rights Agreement
Demand Registration. (a) Form S-1 DemandSeries A Initiating Holders and Series D,E,F,G Initiating Holders Request for Registration. If at any time one hundred eighty In case the Company shall receive from the Series A Initiating Holders or the Series D, E, F, G Initiating Holders a written request that the Company effect a registration with respect to Registrable Securities other than the Common Stock, with respect to the lesser of (180i) days after the effective date 20% of the registration statement for outstanding Registrable Securities, or (ii) the IPOreasonably anticipated aggregate price to the public of which (net of underwriting discounts and commissions) would be equal to at least Ten Million Dollars ($10,000,000), the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall will:
(i) within ten (10) days after give written notice of the date such request is given, give notice thereof (the “Demand Notice”) proposed registration to all Holders other than the Initiating Holders and Holders; and
(ii) as soon as practicable, use its best efforts to effect all such registrations (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under the applicable blue sky or other state securities laws and appropriate compliance with exemptive regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Series A Initiating Holders' or Series D,E,F,G Initiating Holders', as the case may be, Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any event Holder or Holders joining in such request as are specified in a written request given within sixty thirty (6030) days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to take any action to effect such registration pursuant to this subsection 1.2(a):
(A) at any time prior to the earlier to occur of (i) May 31, 2002 or (ii) six (6) months following the effective date such request is given by of the Initiating Holders, file a Form S-1 registration statement under the Securities Act for the Company's initial registered underwritten public offering of its securities to the general public (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction) (the "IPO");
(B) in any particular jurisdiction in which the Company would be required to execute a general qualification or compliance unless the Company is already subject to service in such jurisdiction and except as required by the Securities Act; or
(C) after the Company has effected two (2) such registrations pursuant to this subsection 1.2(a) and such registration has been declared or ordered effective. Subject to the foregoing clauses (A) through (C), the Company shall file a registration statement covering all the Registrable Securities that the Initiating Holders so requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicablepractical, and but in any event within forty-five ninety (4590) days days, after receipt of the date such request is given by or requests of the Series A Initiating Holders or the Series D,E,F,G Initiating Holders, file a Form S-3 registration statement under as the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holderscase may be; provided, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is givenhowever, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, that if the Company furnishes shall furnish to Holders requesting a registration pursuant to this Section 2.1 such Initiating Holders, a certificate signed by the Company’s chief executive officer President of the Company stating that in the good faith judgment of the Board Company's board of directors (the "BOARD OF DIRECTORS"), it would be materially detrimental to the Company and its stockholders shareholders for such registration statement to either become effective be filed on or remain effectivebefore the date filing would be required, then and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date offurnishing of such a certificate of deferral; and provided further, a Company-initiated registrationhowever, provided that the Company is actively employing Board of Directors shall not exercise such right to defer a filing more than once in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the any consecutive twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)period.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at At any time one hundred eighty after the -------------------- expiration of six months after the IPO, TDF may request the Company to register under the Securities Act all or a portion of the shares of Restricted Shares held by it for sale in the manner specified in such notice; provided, that (180i) -------- the reasonably anticipated aggregate net proceeds to the sellers from such public offering would exceed $30,000,000, (ii) such request covers at least 5% of the Voting Securities then outstanding and (iii) no such request may be made by TDF more than once every nine months. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 4.02 within 90 days after the effective date of the a registration statement for the IPO, filed by the Company receives covering a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding firm commitment underwritten public offering in which the anticipated aggregate offering price, net holders of Selling Expenses, would exceed $10 million, then the Company Restricted Shares shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) have been entitled to all Holders other than the Initiating Holders and (ii) as soon as practicable, join pursuant to Sections 4.01 or 4.03 and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 which there shall have been effectively registered all shares of Restricted Shares as to which registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3shall have been requested.
(b) Form S-3 Demand. If at At any time when it is eligible to use a Form S-3 registration statementafter the expiration of six months after the IPO, any Stockholder or group of Stockholders may request the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement register under the Securities Act covering all Registrable Securities requested to be included or a portion of the shares of Restricted Shares held by such Stockholder or group of Stockholders for sale in the manner specified in such registration by any other Holdersnotice; provided, as specified by notice given by each such Holder that (i) the reasonably anticipated aggregate net -------- proceeds to the Company within twenty sellers from such public offering would exceed $30,000,000, (20ii) days such request covers at least 5% of the Voting Securities then outstanding and (iii) no such request may be made by such Stockholders or group of Stockholders more than once every nine months. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 4.02 within 90 days after the effective date of a registration statement filed by the Demand Notice is given, Company covering a firm commitment underwritten public offering in which the holders of Restricted Shares shall have been entitled to join pursuant to Sections 4.01 or 4.03 and in each case, subject which there shall have been effectively registered all shares of Restricted Shares as to the limitations of Sections 2.1(c) and 2.3which registration shall have been requested.
(c) Notwithstanding the foregoing obligationsFollowing receipt of any notice under this Section 4.02, if the Company furnishes shall immediately notify all holders of Restricted Shares from whom notice has not been received and shall use its best efforts to Holders register under the Securities Act, for public sale in accordance with the method of disposition specified in such notice from requesting a registration pursuant to this Section 2.1 a certificate signed holders, the number of shares of Restricted Shares specified in such notice (and in all notices received by the Company from other holders within 20 days after the giving of such notice by the Company’s chief executive officer stating that in ). If such method of disposition shall be an underwritten public offering, the good faith judgment holders of a majority of the Board it would shares of Restricted Shares to be materially detrimental sold in such offering may designate the managing underwriter of such offering, subject to the Company and its stockholders for such registration statement to either become effective approval of the Company, which approval shall not be unreasonably withheld or remain effective, then the delayed. The Company shall have the right be obligated to defer taking action with respect register Restricted Shares pursuant to such filingSection 4.02(a) on three occasions only and pursuant to Section 4.02(b) on three occasions only, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that such obligations shall be deemed satisfied only when a -------- ------- registration statement covering all shares of Restricted Shares specified in notices received as aforesaid, for sale in accordance with the Company may method of disposition specified by the requesting holders, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto unless (i) any such registration statement does not invoke become effective due to the withdrawal thereof by or on the request of the holders of 66 2/3% of the shares of Restricted Shares to be registered or (ii) the reason all shares of Restricted Shares specified in notices pursuant to this right Section 4.02 are not registered is due to a limitation on the registration of shares by the managing underwriter (which limitation shall be applied pro rata) and no more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that 50% of the Company shall Restricted Shares so specified are not register any securities registered as a result of the limitation imposed by such managing underwriter or instruments for its own account or that the voluntary withdrawal of any other stockholder during such period other than an Excluded Registrationshares from registration by the holder thereof.
(d) The Company shall not be obligated entitled to effect, or to take any action to effect, include in any registration pursuant statement referred to in this Section 2.1(a) 4.02, for sale in accordance with the method of disposition specified by the requesting holders, shares of Common Stock to be sold by the Company for its own account, except as and to the extent that, in the opinion of the managing underwriter (i) during if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the period marketing of the Restricted Shares to be sold. Except for registration statements on Forms ▇-▇, ▇-▇ or any successor thereto, the Company will not file with the Commission any other registration statement with respect to its Common Stock, whether for its own account or that is sixty (60) days before the Company’s good faith estimate of other stockholders, from the date of filing of, and ending on receipt of a date that is one hundred eighty (180) notice from requesting holders pursuant to this Section 4.02 90 days after the effective date of, a Company-initiated registration, provided that commencement of the Company is actively employing in good faith commercially reasonable efforts to cause such public offering of the Restricted Shares covered by the registration statement to become effective; (ii) after the Company has effected two registrations requested pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)4.02.
Appears in 1 contract
Sources: Stockholders Agreement (Crown Castle International Corp)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after Subject to the effective date conditions of this Section 6.01, and following the end of the registration statement for Company’s lock-up period with the IPOunderwriters of the Initial Offering in connection with the Company’s consummation of an Initial Offering (provided that if there are no underwriters or lock- up, this will be triggered upon the consummation of an Initial Offering), if the Company receives shall receive a written request from Holders any person or group of at least thirty-five percent persons beneficially owning, owning of record or having the right to acquire Registrable Securities that have not been sold to the public or any assignee of record of such Registrable Securities in accordance with Section 6.09 hereof (35%each, a “Holder”) of 10% of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement on Form S-1 or Form F-1 under the United States Securities Act of 1933, as amended (the “Securities Act”) or another offering document pursuant to any other applicable Laws and regulations (collectively, the “Applicable Listing Laws and Regulations”) covering the registration statement with respect to of at least thirty-five percent (35%) such number of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of all underwriting discounts and selling commissions applicable to the sale (“Selling Expenses”), of at least $5 millionfifteen million dollars (US$15,000,000), then the Company shall (i) shall, within ten (10) days after of the date receipt thereof, give written notice of such request is given, give a Demand Notice to all Holders other than (the “Demand Notice”), and subject to the limitations of this
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 6.01 or any request pursuant to Section 6.04 and the Company shall include such information in the written notice referred to in Section 6.01(a) or Section 6.04(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities then outstanding held by all Initiating Holders (iiwhich underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 6.01 or Section 6.04, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) as soon as practicablethen the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in any event within forty-five the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (45) days after the date such request is given by including the Initiating Holders). For purposes of Section 6.01(c)(i), file a Form S-3 registration statement under shall not be counted as “effected” if, as a result of an exercise of the Securities Act covering underwriter’s cutback provisions in this Section 6.01(b), fewer than all of the Registrable Securities that Holders have requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3statement are actually included.
(c) Notwithstanding the foregoing obligations, if the The Company furnishes shall not be required to Holders requesting effect a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) 6.01: (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two (2) registrations pursuant to this Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of6.01, and ending on a date that is ninety (90) days after the effective date ofsuch registrations have been declared or ordered effective; provided, that, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) 6.01 until such time as the applicable registration statement has been declared effective by the SECSEC or any other Listing Authority, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6statement, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)6.01; provided, further, that if such withdrawal is made as a result of a material adverse change to the Company, then the Initiating Holders may withdraw their request for registration and such registration will not be counted as “effected” for purposes of this Section 6.01.
Appears in 1 contract
Demand Registration. If the Corporation shall, at any time after one year following the date hereof be requested by the holders of at least 50% of the Restricted Shares issued and sold by the Corporation pursuant to the Stock Purchase Agreement and then outstanding (on a Common Stock equivalent basis) to effect a single registration under the Securities Act of Registrable Shares constituting at least 25% of the Registrable Securities, the Corporation shall, within 120 days of such request, effect the registration under the Securities Act of the Registrable Shares which the Corporation has been so requested to register; PROVIDED, HOWEVER, that the Corporation shall not be obligated to effect any registration under the Securities Act except in accordance with the following provisions:
(a) Form S-1 Demand. If at The Corporation may delay the filing or effectiveness of any time one hundred eighty (180) registration statement for a period of up to 120 days after the effective date of a request for registration pursuant to this SECTION 2 if at the time of such request (i) the Corporation is engaged, or has fixed plans to engage within 120 days after the date of such request, in a firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares may include Registrable Shares pursuant to SECTION 3 or (ii) a Material Transaction exists, PROVIDED that the Corporation may only so delay the filing or effectiveness of its registration statement for the IPOstatements (if any) once in any 12-month period pursuant to this SECTION 2(a).
(b) With respect to any registration pursuant to this SECTION 2, the Company receives a request from Holders Corporation may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that, if the managing underwriter advises the Corporation that the inclusion of at least thirty-five percent all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (35%including pricing) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect Shares proposed to at least thirty-five percent (35%) of the Registrable Securities then outstanding be included in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 millionsuch registration, then the Company number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(i) within ten (10) days after FIRST, the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities Shares requested to be included in such registration by any other Holders(or, as specified by notice given if necessary, such Registrable Shares PRO RATA among the holders thereof based upon the number of Registrable Shares requested to be registered by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.holder);
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicableSECOND, and in any event within forty-five the Primary Shares; and
(45iii) days after THIRD, the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3Other Shares.
(c) Notwithstanding At any time before the foregoing obligationsregistration statement covering Registrable Shares becomes effective, either Investors holding a majority of the Registrable Shares requested to be registered (the "MAJORITY INVESTORS") may request the Corporation to withdraw or not to file the registration statement or the Corporation may withdraw or not file the registration if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment reasonable judgement of the Corporation's Board it would be materially detrimental of Directors such withdraw or failure to file is reasonably required to comply with applicable laws or the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request interpretation of the Initiating Holders is givenStaff of the Commission or to avoid a substantial liability (other than expenses of such registration) which would have a material adverse effect on the Corporation's financial condition; provided, however, that the Company may Corporation shall refile such registration statement within 180 days of the Corporation's withdraw or determination not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further file. In that event, if such request of withdrawal by the Company Majority Investors shall not register any securities have been caused by the Corporation or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company financial condition, the holders shall not have used their demand registration rights under this SECTION 2 and the Corporation shall no longer be obligated to effect, or to take any action to effect, any registration register Registrable Shares pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate exercise of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations right pursuant to Section 2.1(a) or (iii) if this SECTION 2 and the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during expenses incurred by the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding Corporation through the date of such requestrequest shall be reimbursed. In the event the Corporation shall withdraw or fail to file the registration statement, the holders shall not have used their demand registration rights under this SECTION 2 and shall be entitled to reimbursement of their expenses through the date of such withdrawal or failure to file. A registration shall not count as
(d) Notwithstanding anything in Section 2, 3 or 4 provided to the contrary, the Corporation's obligation to register shares of Common Stock under the Securities Act hereunder shall be counted as “effected” for purposes suspended during any time (i) such shares of this Section 2.1(d) until such time as the applicable Common Stock are registered pursuant to a then effective registration statement has been declared effective by under the SEC, unless Act or (ii) the Initiating Holders withdraw their request Registrable Securities become eligible for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement sale pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(dRule 144(k).
Appears in 1 contract
Sources: Registration Rights Agreement (Omni Nutraceuticals)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180At the request of Sponsors, ------------------- the Company shall use reasonable efforts to effect the registration under the Securities Act pursuant to the terms of this Section 4.1(a) days after the effective date of the shares of Common Stock held by Sponsors; provided that upon the Public Sale of all of -------- Sponsors' Common Stock, Sponsors will no longer be entitled to any registration statement for rights pursuant to this Section 4.
1. At the IPOrequest of Cendant, the Company receives shall use reasonable efforts to effect a request from Holders of at least thirty-five percent (35%registration under the Securities Act pursuant to this Section 4.1(a) of the Registrable Securities then outstanding that shares of Common Stock or Convertible Preferred Stock held by Cendant. Sponsors jointly and Cendant shall each be entitled to four underwritten registrations pursuant to this Section 4.1 and Sponsors jointly and Cendant shall each be entitled to one "shelf" registration pursuant to this Section 4.
1. Until the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) earlier of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the third anniversary of the date hereof or (ii) the date on which Sponsors own less than 5% of the Common Stock, in any such request is givenregistration requested by Sponsors or Cendant, give notice thereof and in any additional underwritten registrations of Common Stock held by Sponsors or Cendant which the Company elects to effect (the “Demand Notice”) to all Holders other than as required pursuant to this Section 4.1(a)), Sponsors shall be entitled to register up to the Initiating Holders greater of (i) 80% of the total number of shares to be registered in the secondary offering by Sponsors and Cendant (including any shares to be sold by Sponsors and Cendant pursuant to the underwriters' over-allotment option, if exercised) or (ii) such percentage of the total number of shares to be registered in the secondary offering by Sponsors and Cendant such that Sponsors will have sold at least 70% of all shares sold by Sponsors and Cendant following the Company's initial public offering. After the third anniversary of the date hereof, in any registration requested by Sponsors or Cendant, and in any additional underwritten registrations of Common Stock held by Sponsors or Cendant which the Company elects to effect (other than as required pursuant to this Section 4.1(a)), each of Sponsors and Cendant shall be entitled to register a number of shares equal to 50% of the total number of shares to be registered in the secondary offering by Sponsors and Cendant (including any shares to be sold by Sponsors and Cendant pursuant to the underwriters' over-allotment option, if exercised). Notwithstanding the foregoing, once Sponsors own less than 5% of the Common Stock, in any registration requested by Cendant or Sponsors, Cendant shall be entitled to register 100% of the total number of shares to be registered in a secondary offering (including any shares to be sold pursuant to the underwriters' overallotment option, if exercised), subject to Sponsors' right to include shares in such registration pursuant to Section 4.2 (subject to the limitations set forth in Section 4.2(b)). In any registration hereunder, Cendant shall be entitled, at its election, to (i) register the number of shares permitted to be registered by Cendant hereunder or (ii) cause the Company to register on its own behalf the number of shares set forth in clause (i) and use the proceeds from the sale of such shares to redeem, at Cendant's election, the Convertible Preferred Stock or Senior Preferred Stock, if permitted by applicable law. If the proceeds of any sale under this Section 4.1 are not permitted under applicable law to be used to redeem the Convertible Preferred Stock or Senior Preferred Stock, then such proceeds shall be held by the Company to be paid in respect of such shares when and to the extent permitted by law.
(b) Registrations under this Section 4.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Company and (ii) as soon as practicableshall permit the disposition of the Common Stock in accordance with the intended method or methods of disposition.
(c) The Company will pay all Registration Expenses in connection with any registration pursuant to this Section 4.1.
(d) If a registration pursuant to this Section 4.1 involves an underwritten offering, the underwriter or underwriters thereof shall be selected, after consultation with the Company, jointly by Sponsors and Cendant, and in any event within sixty shall be reasonably acceptable to the Company.
(60e) days A registration requested pursuant to this Section 4.1 shall not be deemed to have been effected (i) if a registration statement with respect thereto has not become effective, provided that a registration which does not become effective after the date such request is given Company has filed a registration statement with respect thereto solely by reason of the refusal of Sponsors or Cendant to proceed shall be deemed to have been effected by the Initiating HoldersCompany at the request of Sponsors or Cendant, file as the case may be, (ii) if, after it has become effective, such registration becomes subject to, for longer than 90 days, any stop order, injunction or other order of the Commission or other governmental agency or court for any reason or (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 by reason of some act or omission by Sponsors. If a Form S-1 registration requested pursuant to this Section 4.1 is to be a "shelf" registration, the Company shall use reasonable efforts to keep such registration statement under effective for one year after the Securities Act covering all Registrable Securities effective date thereof, provided that the Initiating Holders requested Company shall not be required to keep the registration statement effective if the continued effectiveness of the registration statement would require the Company to disclose a material financing, acquisition or other corporate development and the Company shall have determined that such disclosure is not in the best interests of the Company for such period not to exceed 180 days; and provided further that the requirement to use reasonable efforts to keep the registration statement effective shall be registered extended one day for each day that the Company allows the effectiveness of the registration statement to lapse in reliance on the preceding proviso.
(f) If a registration pursuant to this Section 4.1 involves an underwritten offering, and any additional Registrable Securities the managing underwriter shall advise the Company in writing (with a copy to each holder of Common Stock being registered) that, in its opinion, the number of shares of Common Stock requested to be included in such registration by any other Holders, as specified by notice given by each exceeds the number which can be sold in such Holder offering within a price range acceptable to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statementStockholders requesting such registration, the Company receives a request from Holders of at least ten percent (10%) will include in such registration, to the extent of the Registrable Securities then outstanding that number which the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of is so advised can be sold in such Holders having an anticipated aggregate offering priceoffering, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested Common Stock to be included in such registration by any other HoldersSponsors and Cendant (or, as specified by notice given by each if Cendant makes the election described in Section 4.1(a), the Company) pro rata --- ---- among such Holder to holders on the Company within twenty (20) days basis of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose number of shares of Registrable Securities that may Common Stock requested to be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause included by such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)holders.
Appears in 1 contract
Sources: Stockholders Agreement (NRT Inc)
Demand Registration. (a) Form S-1 Demand. If Subject to the limitations contained in SECTION 5 and SECTION 6, at any time one hundred eighty (180) days on or after November 2, 1999, the effective date OCM Holders representing a majority of the Common Stock so held or the WES&S Holders representing a majority of the Securities so held may give written notice to the Company requesting the registration statement for of such number of shares of Common Stock as shall be requested by such requesting Holder (the IPO"DEMAND NOTICE"), and thereupon, the Company receives a request from Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding that the Company shall, as expeditiously as possible, prepare and file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included shares specified in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is givenNotice, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to shall use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable best efforts to cause such registration statement to become effective, all in accordance with the provisions of this Agreement; PROVIDED that the Company shall be obligated to effect registration pursuant to this SECTION 3(A) no more than two times for each of the OCM Holders and the WES&S Holders.
(b) Whenever the Company shall have received a demand pursuant to SECTION 3(A) above to effect the registration of any shares, the Company shall promptly give written notice to: (i) in the event such requesting Holder holds a majority of the Securities held by all OCM Holders, any other OCM Holder and to the WES&S Holders, (ii) after in the Company has effected two registrations pursuant to Section 2.1(a) or event such requesting Holder holds a majority of the Securities held by all WES&S Holders, any other WES&S Holder and the OCM Holders; (iii) if the Initiating Holders propose Paribas Holders; and (iv) the ING Holders, and allow each such Holder the opportunity to dispose participate in such registration. Each such Holder may, within ten (10) days after receipt of shares such notice, request in writing that all of Registrable Securities that may such Holder's shares, or any portion thereof designated by such Holder, be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). included in the offering.
(c) The Company shall not be obligated proceed as expeditiously as possible after receipt of a demand pursuant to SECTION 3(A) above to file a registration statement and use its best efforts to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is within ninety (90) days after of the effective date ofof the Demand Notice, a Company-initiated registrationthe registration of an offering under the Securities Act, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become be declared effective by the Commission not later than one hundred and eighty (180) days from the date of such Demand Notice under this SECTION 3. Such offering shall include:
(i) the shares specified in the Demand Notice given pursuant to SECTION 3(A) above; and
(ii) all shares that other Holders have requested be included in the offering pursuant to SECTION 3(B) above; all to the extent required to permit the OCM Holders, the WES&S Holders, the Paribas Holders and the ING Holders, as the case may be, to dispose of such shares in compliance with applicable law; PROVIDED HOWEVER, that if the managing underwriter of such offering shall have determined that the inclusion of any shares pursuant to SECTION 3(B) above shall adversely affect the price, terms or number of securities to be underwritten and sold on behalf of the Holders initiating such demand registration pursuant to SECTION 3(A) above, then all Holders still desiring to participate in such registration shall be subject to a reduction in the number of shares included in such demand registration on a pro-rata basis (a "CUTBACK"). Holders of shares (other than the Paribas Holders and the ING Holders) which either (i) elect to withdraw from such registration because of the Cutback or (ii) participate in the registration but have shares which are Cutback, shall in any case retain their demand registration rights with respect to the shares which are so withdrawn or Cutback. No other outstanding securities of the Company shall be included in such demand registration. Notwithstanding the foregoing, if the OCM Holders experience any Cutback due to the inclusion of the ▇▇▇▇▇ Shares in such demand registration, then additional WES&S Shares shall be Cutback so that there is no incremental Cutback experienced by the OCM Holders by virtue of inclusion of the ▇▇▇▇▇ Shares in such demand registration.
(d) A registration statement filed pursuant to this SECTION 3 shall remain effective until the first to occur of (i) the sale of all of the shares registered under such registration statement or (ii) the date two years following the date such registration statement was declared effective by the Commission, excluding any periods during which the Commission shall have issued any stop order with respect to such registration statement. If the registration statement is part of a shelf offering, the Company shall be obligated to keep such registration statement effective for a period of not less than two years.
(e) The Holders electing to participate in such offering shall have the right to select the managing underwriter to be engaged in connection with any such registration subject to the approval of the Company (which approval shall not be unreasonably withheld). Any such underwriter shall be a member firm of the New York Stock Exchange with a net capital of at least One-Hundred Million Dollars ($100,000,000).
(f) If, at any time prior to the effectiveness of the registration statement referred to in this SECTION 3, the Holders initiating the Demand Notice in SECTION 3(A) above elect to withdraw such registration statement prior to its date of effectiveness, the Company shall promptly withdraw such registration statement prior to its effectiveness and such withdrawing Holders shall forfeit the foregoing demand registration rights referred to in SECTIONS 3(A) AND (B) above. Notwithstanding the foregoing, the demand registration rights referred to in SECTIONS 3(A) OR (B) above shall survive a pre-effectiveness election to withdraw as set forth in this SECTION 3(F), if either (i) such withdrawing Holders reimburse the Company for all of its Registration Expenses in connection with the preparation of such withdrawn registration statement or (B) if the non-demanding Holders elect to replace the withdrawing Holders (in which event such non-demanding Holders shall have been deemed to have exercised their demand registration right).
(g) To the extent any OCM Holders or WES&S Holders elect not to participate in the demand registration requested by the majority of the OCM Holders or WES&S Holders (a "NON-MAJORITY HOLDER"), such Non-Majority Holders shall have the right to participate in the demand registration requested by the other category of shares, subject to the foregoing provisions on Cutbacks.
(h) In addition to the restrictions on the Company has effected two registrations set forth pursuant to Section 2.1(b) within SECTION 8 hereof, the twelve (12) month period immediately preceding Company will not grant to any Person at any time on or after the date hereof the right (a "PIGGYBACK RIGHT") to request the Company to register any securities of the Company under the Securities Act by reason of the exercise by any Holder of its rights under this SECTION 3 unless such request. A registration Piggyback Right provides that such securities shall not be counted as “effected” registered and sold at the same time if the managing underwriter for purposes the respective Holders reasonably believes that the sale of such securities would adversely affect the amount of, or price at which, the respective shares being registered under this Section 2.1(dSECTION 3 can be sold.
(i) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect The Company agrees not to pay effect any public or private sale or distribution of its equity securities, including a sale pursuant to Regulation D under the registration expenses thereforSecurities Act, during the ten (10) day period prior to, and forfeit their right during the one-hundred and twenty day (120) period beginning on, the closing date of an underwritten offering made pursuant to one demand a registration statement pursuant to Section 2.6this SECTION 3.
(j) To the extent that any Holders electing a demand registration determine as of the contemplated offering date not to sell their shares pursuant to an underwritten offering and such Holders do not reimburse the Company for Registration Expenses in the event that no Registration Statement is declared effective, such Holders are nonetheless entitled to have their shares registered pursuant to a "shelf registration" for the time period set forth in which case SECTION 3(D) above.
(k) The Company recognizes that money damages may be inadequate to compensate the Holders for a breach by the Company of its obligations under this Section, and the Company agrees that in the event of such withdrawn registration statement shall a breach the Holder may apply for an injunction of specific performance or the granting of such other equitable remedies as may be counted as “effected” for purposes awarded by a court of competent jurisdiction in order to afford the Holder the benefits of this Section 2.1(d)SECTION 3 and that the Company shall not object to such application, entry of such injunction or granting of such other equitable remedies on the grounds that money damages will be sufficient to compensate the Holder.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after 18 months after the effective date of the registration statement for the IPO, Closing the Company receives a request from Holders of at least thirty-five thirty percent (3530%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to at least thirty-five twenty percent (3520%) of the Registrable Securities then outstanding in which (or a lesser percent if the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 10.0 million), then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders Holders; and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections Section 2.1(c) and Section 2.3.
(b) Form S-3 Demand. If at any time when it after 18 months after the Closing and the Company is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten twenty percent (1020%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 5.0 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders Holders; and (ii) as soon as practicable, and in any event within forty-five thirty (4530) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty ten (2010) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections Section 2.1(c) and Section 2.3.
(c) . Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders shareholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty seventy-five (6075) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice two times in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days)period; and provided further provided, further, that the Company shall not register any securities or instruments for its own account or that of any other stockholder shareholder during such seventy-five (75) day period other than an Excluded Registration.
(d) . The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty thirty (6030) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty ninety (18090) days after the effective date of, a Company-initiated registration, provided provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) ); or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (Ai) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective effective; or (Bii) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. Notwithstanding the foregoing, no more than four (4) registrations shall be permitted under this Agreement. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Sources: Merger Agreement (Green Plains Renewable Energy, Inc.)
Demand Registration. (a) Form S-1 Demand. If at At any time one hundred eighty (180) and from time to time on or following the date that is 180 days after the effective date Closing Date, any Holder or group of the registration statement for the IPO, the Company receives a request from Holders of that beneficially owns at least thirty-five percent 51% (35%calculated on an as converted basis) of the all such Registrable Securities then outstanding may request in writing that the Company file a Form S-1 effect the registration statement of all or part of such Holder’s or Holders’ Registrable Securities with respect to at least thirty-five percent (35%) the Commission under and in accordance with the provisions of the Registrable Securities then outstanding in Act (which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall written request will specify (i) within ten (10) days after the date then-current name and address of such request is givenHolder or Holders, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional aggregate number of shares of Registrable Securities requested to be included in such registration by any other Holdersregistered, as specified by notice given by each such Holder to (iii) the Company within twenty (20) days total number of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of beneficially owned by such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holder or Holders and (iiiv) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, intended means of distribution). The Company will file a Form S-3 registration statement under the Securities Act Registration Statement covering all such Holder’s or Holders’ Registrable Securities requested to be included registered as promptly as practicable (and, in any event, within 90 days) after receipt of such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is givenrequest; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall will not be obligated to effect, or required to take any action to effect, any registration pursuant to this Section 2.1(a3:
(A) (i) during the period that is sixty (60) days before the Company’s good faith estimate of if prior to the date of filing ofsuch request, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any one registration pursuant to this Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or 3;
(B) if the Registrable Securities are not already covered by an existing and effective Registration Statement or if a Registration Statement is effective at the time such request is made and such Registration Statement may be utilized for the offering and sale of the Registrable Securities requested to be registered;
(C) in the case of an Underwritten Offering, unless the Registrable Securities requested to be registered (1) have an aggregate then-current market value of $50 million or more or aggregate liquidation preference of $50 million or more (before deducting underwriting discounts and commission) or (2) constitute all of the then-outstanding Registrable Securities held by the Holders; or
(D) during the pendency of any Grace Period. If a Holder or Holders request that the Company effect a registration pursuant to this Section 3(a) and the Company is at such time eligible to use Form S-3, the Holder or Holders making such request may specify that the requested registration be a “shelf registration” for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.
(b) The Company may satisfy its obligations under Section 3(a) hereof by amending (to the extent permitted by applicable law) any registration statement previously filed by the Company under the Securities Act so that such amended registration statement will permit the disposition (in accordance with the intended methods of disposition specified as aforesaid) of all of the Registrable Securities for which a demand for registration has been properly made under Section 3(a) hereof. If the Company so amends a previously filed registration statement, it will be deemed to have effected two registrations a registration for purposes of Section 3(a) hereof; provided that the date such registration statement is amended pursuant to this Section 3(b) shall be the “the first day of effectiveness” of such registration statement for purposes of determining the Required Period with respect to such registration statement. A registration requested pursuant to Section 2.1(b3(a) within the twelve (12) month period immediately preceding the date of such request. A registration shall hereof will not be counted as “effected” deemed to be effected by the Company for purposes of this Section 2.1(d3(a) until such time as the applicable registration statement hereof if it has not been declared effective by the Commission or become effective in accordance with the Securities Act and kept effective as contemplated by Section 3(c) hereof.
(c) The Company will use its reasonable efforts to keep a Registration Statement that has become effective as contemplated by this Section 3 continuously effective, and not subject to any stop order, injunction or other similar order or requirement of the SEC, unless until the Initiating Holders withdraw their request for earlier of (i) the expiration of the Required Period and (ii) the date on which all Registrable Securities covered by such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement Registration Statement (x) have been disposed of pursuant to such Registration Statement or (y) cease to be Registrable Securities; provided, however, that in no event will such period expire prior to the expiration of the applicable period referred to in Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for 4(3) of the Securities Act and Rule 174 promulgated thereunder. For purposes of this Section 2.1(d)3, “Required Period” shall mean, with respect to a “shelf registration,” two years following the first day of effectiveness, and with respect to any other Registration Statement, 90 days following the first day of effectiveness of such Registration Statement. In the event of any stop order, injunction or other similar order or requirement of the Commission relating to any Registration Statement, the Required Period for such Registration Statement will be extended by the number of days during which such stop order, injunction or similar order or requirement is in effect.
Appears in 1 contract
Sources: Registration Rights Agreement (Ocwen Financial Corp)
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty Subject to the conditions of this Section 2.2, if the Company shall receive a written request from (180x) days beginning on the earlier of (i) five (5) years after the effective date of this Agreement and (ii) six (6) months after the registration statement for the IPOCompany’s Initial Offering, the Company receives a request from Holders of at least thirtysixty-five percent (3565%) of the Registrable Securities then outstanding (the “Preferred Initiating Holders”) or (y) beginning six (6) months after the Company’s Initial Offering, Carlyle or any of its Affiliates holding Registrable Securities (the “Carlyle Initiating Holders” and, together with the Preferred Initiating Holders, the “Initiating Holders”), in each case, that the Company file a Form S-1 registration statement under the Securities Act for an underwritten public offering with respect an anticipated aggregate offering price in excess of $50,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to at least thirty-five percent all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(35%b) All Holders proposing to distribute their securities pursuant to a registration under this Section 2.2 shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by (i) the Holders of a majority of the Registrable Securities then outstanding held by all Preferred Initiating Holders or (ii) the Carlyle Initiating Holders, as applicable (which underwriter or underwriters, in which each case, shall be reasonably acceptable to the anticipated aggregate offering priceCompany). The right of any Holder to include its Registrable Securities shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein (unless otherwise mutually agreed by such Holder and (x) the Holders of a majority of the Registrable Securities held by all Preferred Initiating Holders or (y) the Carlyle Initiating Holders, net as applicable, with respect to such participation and inclusion). If a person who has requested inclusion in such registration as provided in Section 2.2(a) does not agree to the terms of Selling Expensesany such underwriting, would exceed $10 millionsuch person shall be excluded therefrom by written notice from the Company, the underwriter or the applicable Initiating Holders. Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and (A) in the case of a registration requested by the Preferred Initiating Holders, the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders) or in such other proportion as shall be agreed by all holders of Registrable Securities participating in the underwriting and (B) in the case of a registration requested by the Carlyle Initiating Holders, the number of shares that may be included in the underwriting shall be allocated first to the Carlyle Initiating Holders and then to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (excluding the Carlyle Initiating Holders) or in such other proportion as shall be agreed by the Carlyle Initiating Holders and all other holders of Registrable Securities participating in the underwriting; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company not included in the request by the Initiating Holders are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. For purposes of the provision in this Section 2.2(b) concerning apportionment as it relates to demand registrations under Section 2.2 or Underwritten Shelf Takedowns under Section 2.4, for any Holder that is a partnership, limited liability company, or corporation, the partners, retired partners, members, retired members, stockholders, and Affiliates of such Holder, or the estates and immediate family members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “Holder”, and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate number of Registrable Securities owned by all Persons included in such “Holder”, as defined in this sentence.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) within ten (10) days after the date such Company has effected (x) two (2) registrations pursuant to this Section 2.2 at the request is given, give notice thereof (of the “Demand Notice”) to all Holders other than the Preferred Initiating Holders and (y) two (2) registrations pursuant to this Section 2.2 at the request of the Carlyle Initiating Holders, and such registrations have been declared or ordered effective and pursuant to which securities have been sold (other than if the Holders elected not to sell securities pursuant to such registration);
(ii) as soon as practicableduring the period starting with the date of filing of, and in any event ending on the date one hundred eighty (180) days following the effective date of a registration statement pertaining to a public offering subject to Section 2.3, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iii) if within fifteen (15) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering subject to Section 2.3, other than pursuant to a Special Registration Statement, within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding Company’s giving such notice; provided that the Company file a Form S-3 makes reasonable good faith efforts to cause such registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then become effective;
(iv) if the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes furnish to Holders requesting a registration statement pursuant to this Section 2.1 2.2 a certificate signed by the Company’s chief executive officer Chairman of the Board stating that that, in the good faith judgment of the Board of Directors of the Company, it would be materially seriously detrimental to the Company and its stockholders for such registration statement to either become effective or remain effectivebe effected at such time, then in which event the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty one hundred twenty (60120) days after receipt of the request of the Initiating Holders is givenHolders; provided, however, provided that such right to delay a request shall be exercised by the Company may not invoke this right more than twice once in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days)period; and provided provided, further that the Company shall not register any securities for the account of itself or instruments for its own account or that of any other stockholder during such one hundred twenty (120) day period (other than an Excluded Registration.pursuant to a Special Registration Statement);
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iiiv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 or that have been included on a registration statement on Form S-3, including pursuant to a request made pursuant to Section 2.1(b). The 2.4 below; or
(vi) in any particular jurisdiction in which the Company shall not would be obligated required to effect, qualify to do business or to take any action execute a general consent to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate service of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing process in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for effecting such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)qualification or compliance.
Appears in 1 contract
Demand Registration. (a) Request for Registration on Form S-1 DemandOther than Form S-3. If Subject to the terms of this Agreement, in the event that the Company shall receive from Initiating Holder(s) at any time one hundred eighty after the earlier of (180i) days September 13, 2000, or (ii) three (3) months after the effective date of a Qualified Public Offering (provided that, if so required in writing by the registration statement for underwriter(s) of the IPOQualified Public Offering, such three-month period may be extended to a period not to exceed the greater of (I) the length of the lock-up period imposed on members of senior management of the Company in connection with the Qualified Public Offering and (II) six (6) months, provided further that if such three-month period is so extended, the Company receives shall use its reasonable best efforts to arrange for the Registration provided for in this Section 2.1(a) to be effective at or before the end of such extended period), a written request that the Company effect a Registration with respect to all or a part of the Registrable Securities of such Initiating Holder(s) on a form other than Form S-3 for an offering of (x) in the case of a request from Holders delivered by Initiating Holder(s), other than a Significant Holder of at least thirtytwenty-five percent (3525%) of the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect to Series E Registrable Securities, at least thirtytwenty-five percent (3525%) of the then outstanding Series F Registrable Securities or at least twenty-five percent (25%) of the then outstanding Series G Registrable Securities, or (y) in which the anticipated aggregate offering pricecase of a request from an Initiating Holder who is a single Significant Holder, net at least fifty percent (50%) of Selling Expensesthe then outstanding Registrable Securities represented by Convertible Securities owned by such Significant Holder, would exceed $10 million, then the Company shall (iA) within ten (10) days after promptly give written notice of the date such request is given, give notice thereof (the “Demand Notice”) proposed Registration to all Holders other than the Initiating Holders and (iiB) as soon as practicable, and use its best efforts to effect Registration of the Registrable Securities specified in any event within sixty (60) days after the date such request is given by of the Initiating HoldersHolder(s), file a Form S-1 registration statement under the Securities Act covering all together with any Registrable Securities that the Initiating Holders requested to be registered and of any additional Registrable Securities requested to be included Holder joining in such registration by any other Holders, request as are specified by notice in a written request given by each such Holder to the Company within twenty (20) business days after written notice from the Company. The Company shall not be obligated to take any action to effect any such Registration pursuant to this Section 2.1(a) (i) except as provided above, within the three (3) to six (6) months period referred to in the first sentence of this Section 2.1(a) or (ii) after the date Company has effected two (2) such Registrations pursuant to this Section 2.1(a) in which the Demand Notice Company has not Registered securities for its own account and such Registrations have been declared effective. If the number of Registrable Securities proposed to be Registered by the Initiating Holder(s) is givenreduced pursuant to Section 2.1(e)(iii), and such Registration shall not count toward the limit of two (2) Registrations referred to in each case, subject to the limitations of Sections 2.1(c) and 2.3preceding sentence.
(b) Right of Deferral of Registration on Form S-3 DemandOther than Form S-3. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice furnish to all such Holders other than who joined in the Initiating Holders and (ii) as soon as practicable, and in request for any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration Registration pursuant to this Section 2.1 2.1(a) a certificate signed by the Company’s chief executive officer President of the Company stating that that, in the good faith judgment of the Board Board, it would be materially detrimental to the Company and its stockholders for such registration statement any Registration to either become effective or remain effectivebe effected as requested under Section 2.1(a), then the Company shall have the right to defer taking action the filing of a Registration Statement with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, requested Registration for a period of not more than sixty one hundred twenty (60120) days after from delivery of the request of the Initiating Holders is givenHolders; provided, however, that the Company may not invoke utilize this right more than twice once in any twelve twelve-month period.
(12c) month period Request for Registration on Form S-3. Subject to the terms of this Agreement, in the event that the Company receives from one or more Initiating Holders a written request that the Company effect any Registration on Form S-3 (which may be or any successor form to Form S-3 regardless of its designation) at a time when the Company is eligible to Register securities on Form S-3 (or any successor form to Form S-3 regardless of its designation) for consecutive sixty (60) day periods aggregating an offering of Registrable Securities, the Company will promptly give written notice of the proposed Registration to one hundred all other Holders and will as soon as practicable use its best efforts to effect Registration of the Registrable Securities specified in such request, together with all of such Registrable Securities of any Holder joining in such request as are specified in a written request delivered to the Company within twenty (12020) daysbusiness days after written notice from the Company of the proposed Registration on Form S-3. There shall be no limit to the number of occasions on which the Company shall be obligated to effect Registration under this
Section 2.1 (c); and provided further that , but the Company shall not register be required to effect more than two (2) such Registrations in any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registrationcalendar year.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Sources: Senior Registration Rights Agreement (Airnet Communications Corp)
Demand Registration. (a) Form S-1 Demand. If at Commencing 30 days following the Effective Date, any time one hundred eighty Holder of Registrable Securities may make a written request substantially in the form of Annex A hereto for registration under the Securities Act of all or part of its or their Registrable Securities (180a "Demand Registration"); provided that the Issuer shall not be obligated to effect (i) days after the effective date of the registration statement any Demand Registration, except for the IPOfirst Demand Registration hereunder, unless the Company receives a request from Holders of at least thirty-five percent (35%) aggregate market value of the Registrable Securities then outstanding that covered by such written requests (calculated as of a recent date as determined by the Company file a Form S-1 registration statement with respect to Issuer) is at least thirty-five percent $50,000,000; provided that in the case of a Demand Registration which may only be requested by Angelo Gordon, Bank of America or Naugatuck (35%as provided in clause (▇▇▇) ▇▇▇▇▇) ▇he aggregate market value of the Registrable Securities then outstanding covered by such written requests (calculated as of a recent date as determined by the Issuer) is at least $25,000,000, (ii) more than one Demand Registration in any 6-month period, (iii) more than five Demand Registrations in total (of which, one such Demand Registration may only be requested by Angelo Gordon, one such Demand Registration may only be requested by ▇▇▇▇ ▇▇ ▇▇▇▇ica and one such Demand Registration may only be requested by Naugatuck), (iv) any Demand Registration within 3 months of a previous registration in which the anticipated aggregate offering price, net holders of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) Registrable Securities were given piggyback rights pursuant to all Holders other than the Initiating Holders and (ii) as soon as practicable, Section 2.3 and in any event within sixty (60) days after which there was no reduction in the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional number of Registrable Securities requested to be included or (v) any Demand Registration at a time when doing so would be in violation of Section 5.3(b) of the Common Registration Rights Agreement. Each such request will specify the number of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof and may specify the book-running managing Underwriter and any additional investment bankers and managers to be used in connection with an underwritten offering. Promptly after receipt of requests for the registration of Registrable Securities with an aggregate market value of at least $50,000,000 (or $25,000,000 for a Demand Registration which may only be requested by any other HoldersAngelo Gordon, Bank of America or Naugatuck, as specified by notice given by each such Holder to the Company within twenty provided in clause (20▇▇▇) days of the date the Demand Notice is given▇▇▇▇▇), and in each case, subject determined as aforesaid or, in the case of the first Demand Registration hereunder, promptly after the receipt of a request for the registration of Registrable Securities, the Issuer will give written notice of such registration request to all other Holders of the Registrable Securities and include in such registration all such Registrable Securities with respect to which the Issuer has received a written request for inclusion therein within 30 calendar days after written notice has been mailed. Each such request will also specify the number of Registrable Securities to be registered and the intended method of disposition thereof. The registration statement to be filed pursuant to a Demand Registration shall not include securities being sold for the account of other persons and entities (other than securities being sold for the account of other persons and entities pursuant to the limitations piggy-back registration rights provisions of Sections 2.1(cthe Common Registration Rights Agreement) and 2.3or for the account of the Issuer, unless the Holders of a majority of the Registrable Securities to be included in such Demand Registration consent in writing thereto.
(b) Form S-3 Demand. If at any time when A registration will not count as a Demand Registration until it has become effective and remains effective for not less than 90 days or such shorter period as is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) required for all of the Registrable Securities then outstanding that so registered to be sold unless such Demand Registration has not become effective due solely to the Company file fault of, or is terminated at the request of, the requesting Holders.
(c) If the Holders of a Form S-3 registration statement with respect to outstanding majority of the Registrable Securities to be registered in a Demand Registration so elect, the offering of such Holders having Registrable Securities pursuant to such Demand Registration shall be in the form of an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given underwritten offering. Unless otherwise specified by the Initiating Holders, file Holders of a Form S-3 registration statement under majority of the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is givenRegistration, and in each case, subject to the limitations approval of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligationssuch Holders, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated unreasonably withheld, the Issuer shall select the book-running managing Underwriter in connection with such offering and any additional investment bankers and managers to effect, be used in connection with the offering. Any book-running managing Underwriter or additional investment bankers and managers specified by the Holders shall be subject to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate approval of the date of filing ofIssuer, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company which shall not be obligated to effect, unreasonably withheld. To the extent 25% or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate more of the date of filing ofRegistrable Securities so requested to be registered are excluded from the offering in accordance with Section 2.4, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall offering will not be counted count as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)a Demand Registration.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after the effective date earlier of (i) the third anniversary of the registration statement for date hereof, or (ii) three (3) months after the IPOCompany's Common Stock becomes publicly traded (whether through a Qualified Initial Public Offering, a Pubco Transaction (as defined below) or otherwise, (the Company receives a request from "Start Date")) , whichever is earlier, Holders of at least thirty-five percent (35%) of the Registrable Securities then outstanding request in writing that the Company file a Form S-1 registration statement with respect to under the Securities Act covering the registration of at least thirty-five percent (35%) 20% of the Registrable Securities then outstanding in which Registrable Securities, or a lesser percentage if the anticipated aggregate offering price, net of Selling Expensesunderwriting discounts and commissions, would exceed $10 million10,000,000, then the Company shall will (i) within ten (10) days after give written notice of the date such request is given, give notice thereof (the “Demand Notice”) proposed registration to all other Holders other than the Initiating Holders within 10 days of receipt of such request, and (ii) as soon as practicable, and in any event within sixty (60) days after the date use its best efforts to cause such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested shares to be registered and (together with any additional Registrable Securities requested to be included of any Holder or Holders joining in such registration request as are specified in a written request received by any other Holders, as specified by notice given by each such Holder to the Company Company) within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities mailing of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by written notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12a) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register be required to effect any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one within one-hundred eighty (180) days after prior to the filing of, and one-hundred eighty (180) days following the effective date of, a registration statement pertaining to a direct or underwritten public offering of the Company-initiated registration, 's securities in which Registrable Securities were or will be registered; provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective; , (ii) after if, within thirty (30) days of receipt of the written request from the Holders pursuant to this Section 3.1, the Company has effected two registrations pursuant gives notice to Section 2.1(athe Holders of the Company's intention to make a public offering within sixty (60) days or (iii) if the Initiating Holders making the request propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The 4 below, (b) if the Company furnishes the requesting Holders with a certificate of the President of the Company stating that in the good faith judgment of the Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement to be filed in the near future, such registration obligation shall be deferred for not more than ninety (90) days, but the Company shall not be entitled to such deferral more than once in any 12-month period and (c) the Company shall not be obligated to effect, or to take any action to effect, any registration effect more than a total of two (2) demand registrations pursuant to this Section 2.1(b3, and (d) (A) during the period that Company shall not be required to effect a registration in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is thirty (30) days before already subject to service in such jurisdiction and except as may be required under the Act. Any such registration shall be firmly underwritten by an underwriter of nationally recognized standing which shall be mutually agreeable to the Company and a majority in interest of the Holders requesting the registration. If any Holder disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company’s good faith estimate of , the date of filing ofmanaging underwriter and the Holders making the request. The Registrable Securities so withdrawn shall also be withdrawn from registration, and ending on such Registrable Securities shall not be transferred in a date that is public distribution prior to ninety (90) days after the effective date ofof such registration; provided, however, that, if by the withdrawal of such Registrable Securities, a Company-initiated registrationgreater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), provided that then the Company is actively employing shall offer to all Holders who have included Registrable Securities in good faith commercially reasonable efforts the registration the right to cause such include additional Registrable Securities. Holders shall be so entitled to include additional Registrable Securities in the registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) upon written notice within the twelve (12) month period immediately preceding the date 10 days of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)offer being made.
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty following the earlier of: (180i) days after the effective six month anniversary of a Listing Event (as hereinafter defined); (ii) a Change in Control (as hereinafter defined); or (iii) the fourteen (14) month anniversary of the date of the registration statement for the IPOthis Agreement provided that neither a Listing Event nor a Change in Control has occurred, the Company receives shall receive a written request from Eligible Holders of who in the aggregate own at least thirty-five percent (35%) 50% of the total number of shares of Common Stock then included in the Registrable Securities then outstanding that (the "Majority Holders"), to register the sale of all or part of such Registrable Securities, the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering priceshall, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon promptly as practicable, and in any event within sixty (60) not later than 45 days after such request, at the date such request is given by Company's sole cost and expense (other than the Initiating fees and disbursements of counsel for the Eligible Holders, file a Form S-1 registration statement under and the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included underwriting discounts if any, payable in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) respect of the Registrable Securities then outstanding that sold by the Company Eligible Holders), prepare and file with the Commission a registration statement on Form S-3 registration statement with respect to outstanding Registrable Securities covering the resale of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is givenRegistrable Securities; provided, however, the Company shall only be obligated to file one such registration statement. Within three business days after receiving any request contemplated by this Section 1(b), the Company shall give written notice to all the other Eligible Holders, advising each of them that the Company may not invoke this right more than twice in is proceeding with such registration and offering to include therein all or any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that portion of any such other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registrationEligible Holder's Registrable Securities, provided that the Company receives a written request to do so from such Eligible Holder within 30 days after receipt by him or it of the Company's notice. In the event that Form S-3 is actively employing in good faith commercially reasonable efforts to cause unavailable for such registration statement to become effective; (ii) after a registration, the Company has effected two registrations pursuant shall use such other form as is available for such a registration, subject to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b)provisions below. The Company shall not be obligated use its best efforts to effect, or to take any action to effect, any have the registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is statement declared effective within ninety (90) days after of its filing. In the effective date ofevent that Form S-3 is not available for any registration of Registrable Securities hereunder, a Company-initiated registrationthe Company shall (A) register the sale of the Registrable Securities on another appropriate form and (B) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such shall maintain the effectiveness of the registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) then in effect until such time as the applicable a registration statement on Form S-3 covering the Registrable Securities has been declared effective by the SECCommission. As used herein, unless "LISTING EVENT" shall mean an event by which the Initiating Holders withdraw their request Company lists the shares of its $0.01 par value common stock on a national securities exchange or designates its shares for such registrationquotation on the NASDAQ National Market System. Additionally, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement as used herein "CHANGE IN CONTROL" shall be counted as “effected” for purposes of this Section 2.1(d).mean
Appears in 1 contract
Sources: Registration Rights Agreement (Inland Real Estate Corp)
Demand Registration. (a) Form S-1 Demand. If at Subject to Section 10, if the Company shall receive from the Investor a written request that the Company effect any time one hundred eighty registration with respect to any outstanding Registrable Securities held by the Investor, the Company shall as soon as practicable use its best efforts to register all Registrable Securities which the Investor requests to be registered; provided, that the Company shall not be obligated to file a registration statement pursuant to this Section 2:
(180A) prior to the twelve-month anniversary of the Initial Public Offering;
(B) which would result in the registration of a greater number of the 10% Option Shares than the Investor would then be able to sell within a three-month period pursuant to Rule 144;
(C) within 90 days after following the effective date of any registered offering of the Company's securities to the general public;
(D) if, at the time of such request, the Investor is able to immediately dispose of all of its Registrable Securities pursuant to the provisions of Rule 144;
(E) if the Company has effected such a registration statement for within the IPOprevious nine-month period; or
(F) after the Company has effected five such registrations pursuant to this Section 2 and such registrations have been declared or ordered effective. Subject to the foregoing clauses (A) through (F), the Company receives shall file a request from Holders of at least thirty-five percent (35%) of registration statement covering the Registrable Securities then outstanding that the Company file a Form S-1 registration statement with respect so requested to at least thirty-five percent (35%) of the Registrable Securities then outstanding in which the anticipated aggregate offering price, net of Selling Expenses, would exceed $10 million, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) be registered as soon as practicablepractical, and but in any event within sixty thirty (6030) days after (ninety (90) days in the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to event the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is not eligible to use a Form S-3 or any successor form thereto) after receipt of the request of the Investor and shall use reasonable best efforts to have such registration statement, statement declared effective by the Commission within thirty (30) days (ninety (90) days in the event the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a is not eligible to use Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 million, then the Company shall (ior any successor form thereto) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering filing whether or not all Registrable Securities requested to be included in such registration by any other Holdersregistered can be included; provided, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is givenhowever, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, that if the Company furnishes shall furnish to Holders requesting a registration pursuant to this Section 2.1 the Investor a certificate signed by the Company’s chief executive officer President of the Company stating that in the good good- faith judgment of the Board of Directors it would be materially seriously detrimental to the Company and its stockholders shareholders for such registration statement to either become effective be filed within such thirty-day (30-day) or remain effectiveninety-day (90-day) period, then as applicable, and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a an additional period of not more than sixty ninety (6090) days after the request expiration of the Initiating Holders is giveninitial period within which to file such registration statement; provided, however, that during such time the Company may not invoke file a registration statement for securities to be issued and sold for its own account.
(b) If the Investor intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as a part of its request. In such event or if an underwriting is required by subsection 2(c), if so requested in writing by the Company, the Investor shall negotiate with an underwriter selected by the Investor with the consent of the Company (such consent not to be unreasonably withheld) with regard to the underwriting of such requested registration. The Company and the Investor shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this right more than twice Section 2, if the managing underwriter advises the Company in any twelve (12) month period (which may writing that marketing factors require a limitation of the number of shares to be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that underwritten, the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during so advise the period that is sixty (60) days before the Company’s good faith estimate of the date of filing ofInvestor, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose number of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant included in the registration and underwriting shall be reduced accordingly; provided, however, -------- that securities of other holders to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing included in good faith commercially reasonable efforts to cause such registration statement as a result of piggyback registration rights as well as any securities to become effective or (B) if be offered by the Company has effected two registrations pursuant to Section 2.1(b) within Company, its officers and employees shall be excluded from the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective prior to the exclusion of any Registrable Securities held by the SEC, unless Investor. Any Registrable Securities which are excluded from the Initiating Holders withdraw their request for underwriting by reason of the underwriter's marketing limitation shall be withdrawn from such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Demand Registration. (a) Form S-1 Demand. If at any time one hundred eighty (180) days after The Company may include in a Demand ------------------- Registration, Shares for the effective date account of the registration statement Company, Registrable Securities for the IPOaccount of the Investor (which for purposes of this Agreement "account of the Investor" includes all Permitted Transferees) and Shares for the account of other holders thereof exercising contractual piggyback rights, on the Company receives a request from Holders of at least thirty-five percent (35%) of same terms and conditions as the Registrable Securities then outstanding that to be included therein for the Company file a Form S-1 registration statement with respect to at least thirty-five percent (35%) account of the Registrable Securities then outstanding in which Investor and the anticipated aggregate offering pricePermitted Transferees; provided, net of Selling Expenseshowever, would exceed $10 million, then the Company shall that -------- (i) within ten (10) days after if the date such request managing Underwriter or Underwriters of any underwritten offering described in Section 2.1 have informed the Company in writing that it is giventheir opinion that the total number of Shares which the Investor, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders and (ii) as soon as practicableCompany, and any such other holders intend to include in any event within sixty such offering is such as to materially and adversely affect the success of such offering, then (60x) days after the date number of Shares to be offered for the account of such request is given by other holders shall be reduced (to zero, if necessary), in the Initiating Holders, file a Form S-1 registration statement under case of this clause (x) pro rata in --- ---- proportion to the Securities Act covering all Registrable Securities that the Initiating Holders respective number of Shares requested to be registered and any additional Registrable Securities (y) thereafter, if necessary, the number of Shares to be offered for the account of the Company (if any) shall be reduced (to zero, if necessary), to the extent necessary to reduce the total number of Shares requested to be included in such registration offering to the number of Shares, if any, recommended by any other Holders, as specified by notice given by such managing Underwriters (and if the number of Shares to be offered for the account of each such Holder Person has been reduced to the Company within twenty (20) days of the date the Demand Notice is givenzero, and in each case, subject the number of Shares requested to be registered by the limitations Investor exceeds the number of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of Shares recommended by such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $5 millionmanaging Underwriters, then the Company number of Shares to be offered for the account of the Investor and the Permitted Transferees shall (ibe reduced) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicableif the offering is not underwritten, and in no other party (other than other holders exercising contractual piggyback rights), including the Company, shall be permitted to offer securities under any event within forty-five (45) days after such Demand Registration unless the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder Investor consents to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Section 2.1(a) or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date inclusion of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d)shares therein.
Appears in 1 contract
Sources: Registration Rights Agreement (Mariner Post Acute Network Inc)