Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period. (b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders. (c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities. (d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 4 contracts
Sources: Stockholders Agreement (Parkway, Inc.), Stockholders Agreement (Parkway, Inc.), Voting Agreement (Cousins Properties Inc)
Demand Registration. (ai) Subject to If one or more Holders that own an aggregate of 51% or more of the provisions hereof, Registrable Securities then outstanding (the “Demanding Holders”) shall at any time on or after make a written request to the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Company, the Holders Company shall cause there to be filed with the Commission a registration statement meeting the requirements of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) by delivering a written all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request therefor may be made pursuant to this Section 2.1 if within six (6) months prior to the Company (i) specifying date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be included in such registration by such Holder or Holdersregistered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) specifying whether The Company shall be entitled to postpone for up to one hundred twenty (120) days the intended method filing of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder any Demand Registration statement otherwise required to be included prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such Registration Statement in accordance with applicable law. As soon as practicable after registration and the receipt Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerdetermination; provided, however, that (ithe Company shall not have postponed pursuant to this Section 2.1(ii) the Holders filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall not have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under this Section 4.2(a) for Registrable the Securities having an anticipated aggregate offering price of less than $5,000,000Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Holders will not be entitled Company’s best efforts to require keep the Company relevant registration statement Continuously Effective (x) if a Demand Registration, for up to effect more than three two hundred seventy (3270) days or until such earlier date as of which all the Registrable Securities under the Demand Registrations Registration statement shall have been disposed of in the aggregate under this Agreementmanner described in the Registration Statement, and (iiiy) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company will not shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one (1) Demand Registration in any six (6) month period.
(b) The offering Shelf Registration. For purposes of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such casepreceding sentence, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval registration shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as (i) unless a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement statement with respect thereto; provided, however, that if, after it thereto has become effective, (iii) if after such Registration Statement registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if any court prevents the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or otherwise limits waived, other than by reason of a failure on the sale part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the registrationRegistration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in each accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case less may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than all five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder on Form S-1 or Holders other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration StatementStatement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (ii90) if, in days after the case date of an Underwritten Offeringfiling of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company fails shall use its commercially reasonable efforts to provide Full Cooperation, then such meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration will be deemed not to have been effected for purposes of clause (ii) of the proviso pursuant to Section 4.2(a2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. If (i) Whenever the Company shall effect a registration requested pursuant to this Section 4.2 is deemed not to 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have been effected as requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders majority of the Registrable Securities covered by such registration, then the Company shall continue proposed to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d)sold therein by them, each Holder shall decide which class of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to included therein in such offering and the commencement of marketing of such Demand Registrationrelated registration, provided that such registration nonetheless and the other class shall count as a Demand Registration for purposes of clause be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the proviso to Section 4.2(a)amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 4 contracts
Sources: Registration Rights Agreement (Gleacher & Company, Inc.), Investment Agreement (Gleacher & Company, Inc.), Investment Agreement (First Albany Companies Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the earlier of (i) five (5) years from the date that is 180 of this Agreement and (ii) one hundred eighty (180) days after the Closing Date (as defined in initial public offering of the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right Company’s Common Stock pursuant to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities an effective registration under the Securities Act Act, the holders (a “Demand Registration”excluding the Key Holder) by delivering a written request therefor to of at least fifty percent (50%) of the Registrable Securities then outstanding (excluding Key Holder Registrable Securities) may notify the Company that they intend to offer or cause to be offered for public sale at least fifty percent (i50%) specifying of the Registrable Securities then outstanding (excluding Key Holder Registrable Securities) or any lesser number of Registrable Securities (excluding Key Holder Registrable Securities) if the anticipated aggregate sale price, net of underwriting discounts and commissions, if any, would exceed $10,000,000. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Stockholders holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for written notice and in such event the right of any Person to participate in such registration has not been received shall be conditioned upon such Person’s participation in such underwritten public offering and (y) the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its reasonable best efforts to expeditiously effect (but in any event no later than thirty (30) days after such request) the registration of all Registrable Securities whose holders request participation in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of Act, but only to the Registrable Securities that the Company has been so requested to registerextent provided for in this Agreement; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (aregistration pursuant to a request under this Section 2(a) more than two (2) Underwritten Offerings times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2(a) within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve (12which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) month periodunless and until the registration statement relating to such registration has been declared effective by the Commission; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then securities to be excluded shall be determined in the following order of priority: (i) first, persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) second, securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) third, securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) fourth, Registrable Securities of holders who did not make the original request for registration and, if necessary, (v) fifth, Registrable Securities of holders who requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities pursuant to be allocated pro rata among the Holders thereof on the basis Section 2(a). If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iv) or (v), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registrationoffering, and subject only to the consent of the Company, which consent shall not be unreasonably withheld. The Company has complied in all material respects with may not cause any other registration of securities for sale for its obligations under this Agreement with respect thereto; provided, however, that if, after it has own account (other than a registration effected solely to implement an employee benefit plan) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Kala Pharmaceuticals, Inc.), Registration Rights Agreement (Kala Pharmaceuticals, Inc.)
Demand Registration. (ai) Subject to the provisions hereofconditions of this Section 2, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require if the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering shall receive a written request therefor to from the Company Purchasers of at least fifty percent (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations50%) of the Registrable Securities (the “Initiating Purchasers”) then outstanding (whether or not issued) that the Company has been so requested file a registration statement under the 1933 Act or effect a registration for a public offering in the United States and/or in a jurisdiction or jurisdiction of Canada, covering the registration of at least twenty-five percent (25%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $5,000,000), then the Company shall, promptly, and in any event within twenty (20) days of the receipt thereof, give written notice of such request to register; providedall Purchasers, and subject to the limitations of this Section 2, use its reasonable best efforts to effect, as expeditiously as practicable, the registration under the 1933 Act or the Applicable Canadian Securities Laws of all Registrable Securities that the Purchasers request to be registered. Such Registration Statement also shall cover, to the extent allowable under the 1933 Act and the rules promulgated thereunder (including Rule 416) or the Applicable Canadian Securities Laws, such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. The Registration Statement (and each amendment or supplement thereto) shall be provided in accordance with Section 3(c) to the Purchasers and their counsel prior to its filing. The Company must effect an unlimited number of registrations pursuant to this Section 2(a)(i), provided however, that (i) the Holders Company shall not make be obligated to effect (A) a request for a Demand Registration under this Section 4.2(a) for registration covering the sale of Registrable Securities having for an anticipated aggregate public offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (aB) more than two (2) Underwritten Offerings such registrations in any twelve (12) -month period, and or (bC) in any Underwritten Offering during any lock-up period required by the underwriter(sregistration at a time when it is keeping three (3) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderssuch registrations effective.
(cii) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the The Company shall so advise all Holders of Registrable Securities not identify any Purchaser as an underwriter in any Registration Statement or Prospectus filed pursuant to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration this Agreement without the prior written consent of such Purchaser and the holders of a majority Prospectus shall contain (except if otherwise directed by any Purchaser whose Registrable Securities are included in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).and
Appears in 3 contracts
Sources: Registration Rights Agreement (Glencore Holding Ag), Registration Rights Agreement (Polymet Mining Corp), Purchase Agreement (Polymet Mining Corp)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined The Company may include in the Merger Agreement), the Holders of a majority of Demand Registration Registrable Securities shall have for the right to require account of the Demanding Holders and shares of Common Stock for the account of the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws shareholders exercising contractual piggy-back registration rights or other shareholders, on the same terms and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of conditions as the Registrable Securities that are included therein for the Company has been so requested to registeraccount of the Demanding Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate if the managing underwriter(s) of any underwritten offering that is the Underwritten Offering, provided that subject of such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) Demand Registration have informed the Company shall (together with in writing that in their opinion the Holders proposing to distribute their total number of securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with that the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofDemanding Holders, the Company and any other shareholders intend to and for include in such offering exceeds the benefit of the underwriter(s) shall also number that can be made sold in such offering within a price range acceptable to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in of a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition majority of the Registrable Securities disposed of by such Holder pursuant requested to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnairesbe included therein, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate then (ax) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed Registrable Securities to be offered for the account of any stockholders, other than the Demanding Holders, shall be reduced (to zero, if necessary) pro rata in proportion to the respective number of Registrable Securities requested to be registered by such shareholders; and (y) thereafter, if necessary, the number of Registrable Securities to be offered for the account of the Company shall be reduced (to zero, if necessary), to the extent necessary to reduce the total number of Registrable Securities requested to be included in such registration exceeds offering to the Underwriters’ Maximum Numbernumber of Registrable Securities, then if any, recommended by such managing underwriter(s) (i) and if the Company shall so advise all Holders number of Registrable Securities to be included in such Underwritten Offering offered for the account of shareholders other than the Demanding Holders and (ii) for the account of the Company will be obligated has been reduced to zero, and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein in such offering by each such Holder. No shares the Demanding Holders exceeds the number of Common Stock held by any Person other than Registrable Securities held recommended by such managing underwriter(s), then the number of Registrable Securities to be offered for the account of the Demanding Holders shall be included reduced pro rata in a Demand Registration without proportion to the prior written consent respective number of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration registered by the Holders are included in such registration, Demanding Holders); and (ii) if the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, offering that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop ordersuch Demand Registration is not underwritten, injunction or only Demanding Holders, and no other order or requirement of party (including the SEC or any other governmental or administrative agencyCompany), or if any court prevents or otherwise limits the sale of the shall be permitted to include Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) unless the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Demanding Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect owning a Demand Registration pursuant to this Section 4.2 majority of the Registrable Securities included in such registration. In circumstances not including Demand Registration consent in writing to the events described in the immediately two preceding sentences inclusion of this Section 4.2(d), each Holder of such Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)therein.
Appears in 3 contracts
Sources: Registration Rights Agreement (Thomas Group Inc), Revolving Credit Loan Agreement (Thomas Group Inc), Registration Rights Agreement (Thomas Group Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Date, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a3.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 3.9 of this Agreement; provided, that that
(i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numbermaximum number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numbermaximum number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a). If (i) a registration requested pursuant to this Section 4.2 3.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 3.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 3.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d3.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a).
Appears in 3 contracts
Sources: Voting Agreement (Cousins Properties Inc), Stockholders Agreement (Cousins Properties Inc), Voting Agreement (Parkway Properties Inc)
Demand Registration. (ai) Subject to the provisions hereof, at any time on or From and after the date that is 180 days six months after the Closing Date (as defined in the Merger Agreement)Date, the Holders of a majority at least 55% of the Registrable Securities shall have the right then outstanding (excluding any Shelf Shares) may notify Parent in writing that such Holders desire for Parent to require the Company cause up to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of such notifying Holders' Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether registered for sale to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawpublic under the Act. As soon as practicable after the Upon receipt of such demandwritten request, the Company shall (x) Parent will promptly notify in writing all other Holders of Registrable Securities of such request, which Holders shall within twenty days following such notice from whom the request for registration has not been received and (y) use reasonable best efforts Parent notify Parent in writing whether such persons desire to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) have up to all of the Registrable Securities held by each of them included in such offering. Parent will, promptly following the expiration of such twenty day period, prepare and file subject to the provisions of this Section 10.02, and use its best efforts to prosecute to effectiveness, an appropriate filing with the SEC of a registration statement covering such Registrable Securities and the proposed sale or distribution thereof under the Act.
(ii) thereto or (B) would materially adversely affect the business or prospects of Parent in view of the disclosures that may be required thereby of information about the Company has been so requested to registerbusiness, assets, liabilities or operations of Parent theretofore disclosed; provided, however, that (i) the Holders shall not make filing of a request for a Demand Registration under registration statement, or any supplement or amendment thereto, by Parent may be deferred pursuant to this Section 4.2(a10.02(c) for Registrable Securities having an anticipated aggregate offering price no longer than 180 days (but only once in every twelve month period) after the delivery of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and such demand notice.
(iii) Notwithstanding anything in this Section 10.02(c) to the Company will contrary: (A) Parent shall not be obligated required to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering the registration of the Registrable Securities pursuant to this Section 10.02(c) more than one time; and (B) Parent shall not be required to effect any such Demand Registration may registration unless at least $1 million of Registrable Securities are to be sold in such registration (with such amount being determined based on the market price of the Parent Common Stock on the date of the initiating Holder(s) request). If any registration pursuant to this Section 10.02(c) is in the form of an underwritten public offering (an “Underwritten Offering”). In such caseoffering, (i) Parent will select and obtain the Company may designate investment banker or investment bankers and manager or managers that will administer the managing underwriter(s) of the Underwritten Offeringoffering, provided that such Holders may designate a co-managing underwriter to participate which investment bankers must offer terms which are reasonably competitive in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed marketplace for similar size companies and (ii) the Company similar offerings. Parent shall (together with the all Holders proposing to distribute their securities Registrable Securities through such underwriting) enter into an underwriting agreement in agreement, containing usual and customary form for underwriting agreements for firm commitment offerings of equity securities terms, with the managing underwriter(s) proposing underwriter selected for such underwriting. If any holder of Registrable Securities disapproves of the terms of the underwriting, such person may elect to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, withdraw therefrom by written notice to Parent and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) managing underwriter. The Registrable Securities so withdrawn shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) withdrawn from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersregistration.
(civ) If, in connection with an Underwritten Offering, the managing underwriter(sIf any registration statement under this Section 10.02(c) advise the Company that in its or their reasonable opinion the number is not declared effective (except as a result of securities proposed to be included in such registration exceeds the Underwriters’ Maximum NumberHolders withdrawing Registrable Securities), then (i) the Company shall so advise all Holders holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such may request an additional registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiesunder this Section 10.02(c).
(dv) A registration will not be deemed No registrations effected under this Section 10.02(c) shall relieve Parent of its obligations to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationeffect any registrations under, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationterms of, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a10.02(d).
Appears in 3 contracts
Sources: Merger Agreement (Smith Jack T), Merger Agreement (Palmer J N Family Partnership), Merger Agreement (Ladin William E Jr)
Demand Registration. (a) Subject to the provisions hereoflimitations contained in Section 2(b), at any time on or after the date that is 180 days three months after the Closing Date (as defined the “Rights Effective Date”), Primary Holders may request by written notice delivered to the Company (a “Demand Notice”) that the Company register under the Securities Act all or any portion of the Registrable Securities then held by such Primary Holders, for sale in the Merger Agreementmanner specified in such notice (including, but not limited to, an underwritten public offering) (a “Demand Registration”). In each such case, the Holders of a majority Demand Notice shall specify the number of Registrable Securities for which registration is requested and the proposed manner of disposition of such securities.
(b) The Company shall have use its best efforts to file with the right SEC within thirty (30) days after the Company’s receipt of a Demand Notice a registration statement for the public offering and sale, in accordance with the method of disposition specified by Primary Holders, of the number of Registrable Securities specified in such notice, and thereafter use its commercially reasonable efforts to require cause such registration statement to become effective within sixty (60) days after its filing. Such registration statement may be on Form S-3 or another appropriate form that the Company is eligible to use and that is reasonably acceptable to the managing underwriter, if any; provided that if the Company is a WKSI, an automatic shelf registration on Form S-3 will, at the request of Primary Holders, cover an unspecified number of shares of Common Stock to be sold by the Company and Holders and the Company shall file such a Registration Statement registering for sale all or part shelf registration statement within fifteen (15) days after receipt of their respective a request by the Primary Holders therefor; provided further that if requested at least fifteen (15) days prior to the Rights Effective Date, the Company shall file such a shelf registration statement on the Rights Effective Date.
(c) The Company shall not have any obligation hereunder to register any Registrable Securities under Section 2(a)(ii) unless it shall have received a request from Primary Holders to register at least ten percent (10%) of the aggregate amount of Registrable Securities held by all of the Primary Holders as of the date of such request.
(d) If the Company is required to use its best efforts to register Registrable Securities in a registration initiated upon the demand of Primary Holders pursuant to Section 2(a)(ii) of this Agreement and the Approved Underwriters, if any, for such offering advise that the inclusion of all securities sought to be registered pursuant to Section 2 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, first, the aggregate number of Registrable Securities that are participating in such offering pursuant to Sections 2(a)(ii) or 3(a), allocated pro rata among the Registrable Securities based on the number of shares of Common Stock beneficially owned by each such Holder on the date that the Demand Notice is received by the Company which the Approved Underwriters, if any, advise will not likely have such effect, and second, all other securities requested or proposed to be included in such registration (including shares of Common Stock to be sold for the account of the Company).
(e) Upon the demand of Primary Holders pursuant to Section 2(a)(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 pursuant to Rule 415 of the Securities Act (a “Demand RegistrationShelf Takedown”) by delivering a written request therefor ), including, subject to the limitations set forth in Section 2(b), an underwritten Shelf Takedown. Notwithstanding the foregoing, such Primary Holders may not demand a Shelf Takedown for an offering that will result in the imposition of a lockup on the Company and the Primary Holders unless the shares requested to be sold by the Primary Holders in such takedown have an aggregate market value (ibased on the most recent closing price of the Common Stock at the time of the demand) specifying the number of at least $10 million.
(f) If any Demand Registration of Registrable Securities to be included is in such registration by such Holder or Holders, (ii) specifying whether the intended method form of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company Primary Holders shall (x) promptly notify all Holders from whom select and obtain one or more investment banking firms of national or regional reputation to act as the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky managing underwriter or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) underwriters of the Registrable Securities that the Company has been so requested to registeroffering; provided, however, that such firm or firms shall, in any case, also be approved by the Company, such approval not to be unreasonably withheld, delayed or conditioned. An investment banking firm or firms selected pursuant to this Section 2(a)(vi) shall be referred to as the “Approved Underwriter” herein.
(ig) Upon the demand of Holders, 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 Holders shall and not make yet “reloaded” onto such shelf registration statement. The Holders and the Company will consult and coordinate with each other in order to accomplish such replenishments from time to time in a request for sensible manner.
2.2 The obligations of the Company to effect, or to take any action to effect, a Demand Registration under or an underwritten Shelf Takedown shall be limited as follows:
(a) In connection with the provisions of this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002, (ii) the Primary Holders will not be entitled to may require the Company to effect no more than three (3) Demand Registrations or underwritten Shelf Takedowns in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any 365 day period during the six (6) month year period commencing on the Rights Effective Date. After the expiration of the such period, the Company shall no longer have any obligation to file Demand Registrations at the request of the Primary Holders.
(b) The offering For the avoidance of doubt, until the six (6) year anniversary of the Rights Effective Date, there shall be no limit on the number of non-underwritten Shelf Takedowns that Primary Holders may request (but after such date, Primary Holders shall no longer have the right to make any such requests), and, to the extent that Registrable Securities are not covered by an effective shelf registration on Form S-3, the Primary Holders shall be entitled to demand that the Company effect such a shelf-registration, notwithstanding the limits set forth in this Section 2(b) and no such demand for a shelf registration statement shall count against the limits set forth in this Section 2(b).
2.3 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.
2.4 No registration of Registrable Securities under this Section 2 shall relieve the Company of its obligation (if any) to effect registrations of Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders3.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 3 contracts
Sources: Registration Rights Agreement (Lightyear Fund Ii Lp), Merger Agreement (Vantagesouth Bancshares, Inc.), Merger Agreement (YADKIN FINANCIAL Corp)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Stockholders (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, 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”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Demand Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Members on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 3 contracts
Sources: Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings (New) LLC)
Demand Registration. (a) Subject to Except as provided in Section 2.2(b) below, upon the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), written request of the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act owning not less than ten percent (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations10%) of the Registrable Securities that the Company has been effect pursuant to this Agreement the registration of the resale of the Registrable Securities under the Securities Act (which request shall specify the Registrable Securities so requested to registerbe registered by each such Holder, the Proposed Amounts thereof and the intended method of disposition by such Holders), the Company will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of the resale of the Proposed Amount of Registrable Securities, for disposition in accordance with the intended method of disposition stated in such request; provided, however, however that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations if in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering good faith judgment of the Registrable Securities pursuant to such Demand Registration may be in the form Board of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval Directors of the Company, which approval shall not such registration would be unreasonably withheld or delayed detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (ii) the Company shall (together with furnish to such Holders a certificate signed by an executive officer of the Holders proposing Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to distribute their securities through defer the filing of such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with registration statement, then the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement Company shall have indemnification provisions the right to defer such filing for the period during which such registration would be detrimental, provided that the Company may not defer the filing for a period of more than 120 days after receipt of the request of such Holders. The Company shall be entitled to include in substantially any registration statement filed pursuant to this Section 2.2: (A) securities of the form as set forth in Section 4.9 Company held by any other security holder of this Agreement; provided, that (i) the representations and warranties byCompany, and the other agreements on the part of(B) in an underwritten public offering, securities of the Company to be sold by the Company for its own account, except as and for to the benefit extent that (x) in the opinion of the underwriter(s) shall also be made to and for the benefit managing underwriter (if such method of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder disposition shall be required to make any representations and warranties toan underwritten public offering), or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) such inclusion would adversely affect the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition marketing of the Registrable Securities disposed of to be sold by such Holder pursuant to such Underwritten Offering. No Holder may participate Holders or (y) in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms reasonable opinion of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf Holders owning a majority of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders Proposed Amount of Registrable Securities to be included in (if such Underwritten Offering and (ii) method of disposition is not an underwritten public offering), such inclusion would adversely affect the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, price at which such Registrable Securities may be sold pursuant to be allocated pro rata among the Holders thereof on the basis plan of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretodistribution; provided, however, that if, after such registration statement has been filed, the managing underwriter believes that the inclusion of all securities requested to be included in the proposed underwritten public offering would adversely affect the marketing of the Registrable Securities or, in the case of a distribution that is not an underwritten public offering, if such Holders owning a majority of the Proposed Amount of Registrable Securities reasonably believe that the inclusion of all securities requested to be included in such registration statement would adversely affect the price at which the Registrable Securities may be sold pursuant to the plan of distribution, then the aggregate amount of securities to be offered by the Company and such other security holders of the Company shall be reduced so as to permit the offering of all Registrable Securities requested by all the Holders of the entire Proposed Amount of Registrable Securities without such adverse effects.
(b) The Company shall not be obligated to take any action to effect any registration requested by the Holders pursuant to Section 2.2(a) hereof (i) after the Company has effected two (2) such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, (ii) for a period of two (2) years after the Company has effected one such registration pursuant to Section 2.2(a) hereof and such registration has been declared or ordered effective, such two year period to commence on the date the registration statement was declared or ordered effective or (iii) at any time after the second anniversary of the expiration date of the Warrants.
(c) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto by reason of the refusal of Holders owning a majority of the Proposed Amount to proceed shall be deemed to have been effected by the Company unless the Holders shall have elected to pay all Company Registration Expenses in connection with such registration, (iii) if after it has become effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, court for any reason other than a misrepresentation or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered an omission by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration StatementHolders, or (iiiii) if, if the conditions to closing specified in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied other than by reason of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration some wrongful act or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution omission, or act or omission in bad faith, by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holders.
Appears in 3 contracts
Sources: Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (General Electric Capital Corp)
Demand Registration. (a) Subject to the provisions hereof, If at any time on following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or after the date that is 180 days after the Closing Date more underwriters (as defined in the Merger Agreementunless waived by such underwriter(s)), the Holders of Company shall receive a majority of Registrable Securities request (each such request shall have the right be referred to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (herein as a “Demand Registration”) by delivering from a written request therefor Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) specifying for the number first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities to be included in such registration by such Holder then outstanding (or Holdersany lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying whether the intended method of disposition thereof thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is pursuant to an Underwritten Offering (as defined below)given by the Requesting Shareholder, file a registration statement under the Securities Act, and (iiiii) containing use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all information about such Holder required Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be included in registered by the Requesting Shareholder that any other Shareholders (all such Registration Statement Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with applicable law. As soon the intended methods thereof as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsaforesaid) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringregistered, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofthat, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration by the Holders are included in statement relating to such registration, and the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company has complied in all material respects with its obligations under this Agreement with respect thereto; providedrevoking such request. Notwithstanding clause (d) below, howevera request, that ifso revoked, after it has become effective, 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 Statement Expenses in connection with such revoked request) or (ii) the related offerRequesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, sale regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or distribution of such shorter period in which all Registrable Securities thereunder of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits court.
(e) If the sale of the Registrable Securities pursuant Requesting Shareholder intends to the registration, and in each case less than all of distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the effective Company as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration Statement involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder 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 actually 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 “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the selling Holder or Holders Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the Registration Statementnotice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) if, in effecting the case registration would require the premature disclosure of an Underwritten Offeringmaterial information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company fails shall not be obligated to provide Full Cooperationeffect, then such or to take any action to effect, any registration will be deemed not pursuant to have been effected for purposes of clause Section 2.01 during the period that is thirty (ii30) days before the Company’s good faith estimate of the proviso to Section 4.2(a). If date of filing of, and ending on a date that is ninety (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (4590) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationeffective date of, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all Company-initiated registration (other than a registration on Form S-8 or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationsuccessor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso statement to Section 4.2(a)become effective.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Sol-Gel Technologies Ltd.), Registration Rights Agreement (Sol-Gel Technologies Ltd.)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Lockup Date, the Holders of Company shall receive a majority of Registrable Securities shall have written request from the right to require Investor that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of the Registrable Securities specified in such written request (a “Demand Registration”) by delivering a written request therefor to the Company (i) ), specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowinformation set forth under Section 6.4(i), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 6.1(e), the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof the Registrable Securities for which the Investor has requested registration under this Section 6.1, 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 has been so requested shall not be required to register; provided, however, that effect (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) such Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed period and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings such Demand Registrations in any twelve (12) month period, and total.
(b) At any time prior to the effective date of the registration statement relating to such registration, the Investor may revoke such Demand Registration request by providing a notice to the Company revoking such request, provided, that such Demand Registration shall count as having been effected for purposes of the proviso to Section 6.1(a) above unless the Investor pays all Registration Expenses in any Underwritten Offering during any lock-up period required connection with such revoked Demand Registration within thirty (30) days of written request therefor by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersCompany.
(c) IfFor any Public Offering relating to a Demand Registration, the Company shall select, with the consent of the Investor (not to be unreasonably withheld, delayed or conditioned), the lead underwriter and any additional underwriters in connection with an Underwritten the offering. In connection with any Public Offering, the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take all other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Public Offering.
(d) If a Demand Registration involves an underwritten Public Offering and the managing underwriter(s) advise advises the Company that and the Investor that, in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numberview, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein in such registration by each such Holder. No shares the Investor, the Company and for the account of Common Stock held by any Person other than Persons exceeds the largest number of Registrable Securities held that can be sold without having a material adverse effect on such offering, including the price at which such Registrable Securities can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered in the Demand Registration by the Holders Investor; and
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiesdetermine.
(de) A Upon notice to the Investor, the Company may postpone effecting a registration pursuant to this Section 6.1 on up to two (2) occasions during any three hundred and sixty-five (365) consecutive day period for a reasonable time specified in the notice but not exceeding ninety (90) days in the aggregate (which period may not be extended or renewed), if (i) the Company shall determine in good faith, based on advice from independent investment bankers, that effecting the registration would materially and adversely affect an offering of securities of the Company, the preparation of which had then been commenced, or (ii) the Company is in possession of material non-public information, the disclosure of which during the period specified in such notice the Company believes in good faith would not be in the best interests of the Company. If the Company so postpones effecting a registration, the Investor will be entitled to withdraw its registration request and, if such request is withdrawn, such registration request will not count for purposes of the limitation set forth in the proviso to Section 6.1(a).
(f) Notwithstanding any provision in this Section 6.1 or elsewhere in this Agreement, no provision relating to the registration of Registrable Securities shall be deemed construed as permitting the Investor to have effect a Transfer of securities that is otherwise prohibited by the terms of this Agreement or any other agreement between the Investor and the Company or any of its Subsidiaries.
(g) Notwithstanding the foregoing, no Demand Registration shall count as having been effected as a for purposes of the proviso to Section 6.1(a) (and the Company shall pay or reimburse all Registration Expenses pursuant to Section 6.5) if (i) the registration statement relating to such request is not declared effective within one hundred and eighty (180) days of the date such registration statement is first filed with the SEC and the Investor revokes such Demand Registration unless prior to such registration statement being declared effective, (ii) prior to the Registration Statement relating thereto has been declared effective by the SEC, sale of at least 75% of the Registrable Securities requested to be included in the applicable registration relating to such request, such registration is adversely affected by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason and the Company fails to have such stop order, injunction or other order or requirement removed, withdrawn or resolved to the Investor’s reasonable satisfaction within thirty (30) days of the date of such order, or if (iii) the conditions to closing specified in the underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the Investor).
(h) Upon written request of the Investor following the Lockup Date, the Company will use its commercially reasonable efforts to qualify for registration on and to promptly file, Form S-3 or any court prevents comparable or otherwise limits successor form or forms or any similar short-form registration (“Short-Form Registration”), and such Short-Form Registration will be a “shelf” registration statement providing for the registration, and the sale on a continuous or delayed basis, of the Registrable Securities pursuant to Rule 415. Upon filing a Short-Form Registration, the registrationCompany will, if applicable, use its commercially reasonable efforts to: (i) cause such Short-Form Registration to be declared effective, and (ii) keep such Short-Form Registration effective with the SEC at all times and re-file such Short-Form Registration upon its expiration. The Company shall cooperate in each case less than all any shelf take-down by amending or supplementing the prospectus statement related to such Short-Form Registration as may be requested by the Investor or any transferees or as otherwise required, until the Investor or any transferees who would require such registration to effect a sale of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of no longer hold the Registrable Securities covered by such registration, then or until the time specified in Section 6.14 hereof. The Company shall continue to be obligated to effect a Demand will pay all Registration pursuant to this Section 4.2 of the Registrable Securities included Expenses incurred in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or connection with any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Short-Form Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 3 contracts
Sources: Stockholder Agreement (China Investment Corp), Stock Purchase Agreement (China Investment Corp), Stockholder Agreement (Aes Corp)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after expiration of the Closing Date (as defined in the Merger Agreement)Restricted Period, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities Sellers Representative may, on one occasion only, request registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerheld by him; provided, however, that (i) the Holders no such registration request shall not make a request for a Demand Registration under this Section 4.2(a) for be permitted to be made at any time when all Registrable Securities having then held by and issuable to the Founders may be sold under Rule 144 during any ninety (90) day period and the certificates evidencing such Registrable Securities bear no legends restricting the transfer thereof or may be issued or re-issued without such legends (and, to the extent such securities are issued in global form, bear an anticipated aggregate unrestricted CUSIP number or may be issued or re-issued bearing an unrestricted CUSIP number); provided further, however, that no such registration request shall be permitted to be made in connection with an underwritten offering price of less than $5,000,000in which the Registrable Securities would be sold to an underwriter or underwriters for reoffering to the public; and provided further, (ii) however, that no such registration request shall be permitted to be made at any time after the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than Parent has effected one (1) Demand registration pursuant to this Section 13.21. Within ten (10) days after receipt of such a registration request, the Parent shall give written notice of such requested registration to all other holders of Registrable Securities for whom the Parent has current contact information and shall include in such registration all such Registrable Securities with respect to which the Parent has received written requests for inclusion therein within twenty (20) days after the transmission of the Parent’s notice. Within sixty (60) days after the receipt of such a request, the Parent shall prepare and file with the Securities and Exchange Commission (the “SEC”) a Registration in any six Statement on Form S-3 (6or, if Form S-3 is not then available to the Parent, then on (i) month period.
Form S-1 or (bii) The offering such other form of registration statement as is then available to effect a registration for resale of the Registrable Securities pursuant Securities) (the “Registration Statement”) and thereafter shall use its reasonable best efforts to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in cause such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished Statement to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementbecome effective. The Company Founders’ request(s) for registration shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by specify the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the approximate number of Registrable Securities requested to be included therein by registered, the anticipated per share price range for such offering and the intended method of distribution. As used in this Section 13.21, the term “Founders” shall mean and include only (i) each of the Founders that then holds Registrable Securities, (ii) any bank or other institutional lender to any Founder to which such Holder. No shares of Common Stock held by any Person other than Founder collaterally assigns its rights under this Section 13.21 that (w) then holds Registrable Securities held and (x) agrees to become bound by the Holders shall be included provisions of this Agreement in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationaccordance with Section 13.21(k), and the Company has complied in all material respects with (iii) any transferee or assignee thereof to which any such bank or other institutional lender assigns its obligations rights under this Agreement with respect thereto; provided, however, and that if, after it has become effective, (iy) such Registration Statement or the related offer, sale or distribution of then holds Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant and (z) agrees to the registration, and in each case less than all of the Registrable Securities covered become bound by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences provisions of this Agreement in accordance with Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a13.21(k).
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (Blyth Inc)
Demand Registration. (ai) Subject to If the provisions hereof, Corporation receives at any time on or after six (6) months following the effective date that is 180 days after of the Closing Date (as defined in Corporation’s initial public offering, a written request from the Merger Agreement), the Demand Holders of a majority at least twenty-five percent (25%) of the Registrable Securities shall have then outstanding that the right to require the Company to Corporation file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act covering the registration of the Registrable Securities, then the Corporation shall, within ten (a 10) business days after the receipt thereof, give written notice of such request to all Demand Holders, and effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities which the Demand Holders request to be registered and included in such registration, subject only to the limitations of this Section 5(f);
(ii) If the Demand Holders initiating the registration request under this Section 5(f) (“Demand RegistrationInitiating Holders”) intend to distribute the Registrable Securities covered by delivering their request by means of an underwriting, they shall so advise the Corporation as a part of their request made pursuant to this Section 5(f) and the Corporation shall include such information in the written request therefor notice referred to in Section 5(f)(i) hereof. In such event, the right of any Demand Holder to include such Demand Holder’s Registrable Securities in such registration shall be conditioned upon such Demand Holder’s participation in such underwriting and the inclusion of such Demand Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Demand Holder) to the Company (iextent provided herein. All Demand Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Corporation. Notwithstanding any other provision of this Section 5(f), if the underwriter(s) specifying advise(s) the Corporation in writing that marketing factors require a limitation of the number of securities to be underwritten, then the Corporation shall also advise all Demand Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be reduced as required by the underwriter(s) and allocated among the Demand Holders of Registrable Securities on a pro rata basis according to the number of Registrable Securities then outstanding held by each Demand Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration by shall not be reduced unless all other securities of the Corporation and other stockholders are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded and withdrawn from such Holder or Holders, (ii) specifying whether underwriting shall be withdrawn from the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and registration.
(iii) containing all information about The Corporation is obligated to effect only two (2) such Holder required registrations pursuant to this Section 5(f).
(iv) Notwithstanding the foregoing, if the Corporation furnishes to Demand Holders requesting the filing of a registration statement pursuant to this Section 5(f) a certificate signed by the President or Chief Executive Officer of the Corporation stating that in the good faith judgment of the Board of Directors of the Corporation, it would be seriously detrimental to the Corporation and its stockholders for such registration statement to be included in filed and it is therefore essential to defer the filing of such Registration Statement in accordance with applicable law. As soon as practicable registration statement, then the Corporation shall have the right to defer such filing for a period of not more than one hundred and twenty (120) days after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerInitiating Holders; provided, however, that (i) the Holders shall Corporation may not make a request for a Demand Registration under utilize this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect right more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings once in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(cv) If, All expenses incurred in connection with an Underwritten Offeringa registration pursuant to this Section 5(f), including without limitation, all federal and “blue sky” registration and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Corporation, and of one counsel for the participating Demand Holders (but excluding underwriters’ discounts and commissions), shall be borne by the Corporation. Each Holder participating in a registration pursuant to this Section 5(f) shall bear its proportionate share of all discounts, commissions or other amounts payable to underwriters or brokers in connection with such offering. Notwithstanding the foregoing, the managing underwriter(sCorporation shall not be required to pay for any expenses of any registration proceeding begun pursuant to this Section 5(f) advise if the Company that in its or their reasonable opinion registration request is subsequently withdrawn at the number request of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Demand Holders of a majority of the Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoregistered; provided, however, that ifif at the time of such withdrawal, after it has become effectivethe Holders have learned of a material adverse change in the condition, (i) such Registration Statement business, or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement prospects of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Corporation not known to the registration, Demand Holders at the time of their request for such registration and in each case less than all have withdrawn their request for registration with reasonable promptness after learning of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperationsuch material adverse change, then the Demand Holders shall not be required to pay any of such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested expenses and shall retain their rights pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a5(f).
Appears in 3 contracts
Sources: Stockholders Agreement (Onconova Therapeutics, Inc.), Stockholders Agreement (Onconova Therapeutics, Inc.), Stockholders Agreement (Onconova Therapeutics, Inc.)
Demand Registration. (a) Subject to the provisions contained in this Section 2.1 and in Sections 5.1 and 5.2 hereof, at any Holder or group of Holders may, from time on or after to time following the date that which is 180 days after the Closing first (1st) anniversary of the Distribution Date (as defined in each, a “Requesting Holder” and collectively, the Merger Agreement“Requesting Holders”), the Holders of make a majority of Registrable Securities shall have the right to require request in writing (a “Demand Request”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of at least the Minimum Registrable Securities owned by the Requesting Holder(s) (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall event be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate effect:
(a) more than two four (24) Underwritten Offerings Demand Registrations in any twelve (12) month period, and ;
(b) in any Underwritten Offering Demand Registration during the period from sixty (60) calendar days prior to and sixty (60) calendar days after the date of effectiveness of any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
Registration Statement (c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Shelf Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoStatement); provided, however, that if, after it has become effective, the Company provided the Holders at least five (i5) Business Days’ notice of the initial filing of such Registration Statement or pursuant to Section 10.1 hereof; and
(c) any Demand Registration if the related offerShelf Registration Statement is then effective, and such Shelf Registration Statement may be utilized by the Requesting Holders for the offering and sale or distribution of all of their Registrable Securities thereunder is or becomes without a requirement under the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Commission’s rules and regulations for a post-effective amendment thereto. Subject to the registration, provisions contained in this Section 2.1 and in each case less than all Sections 5.1 and 5.2 hereof, upon receipt of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringa Demand Request, the Company fails shall use its commercially reasonable efforts to provide Full Cooperationcause to be included in a Registration Statement on an appropriate form under the Securities Act, then such registration will be deemed filed with the Commission as promptly as practicable but in any event not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until later than forty-five (45) days after the commencement of the distribution by the Holders of the receiving a Demand Request, such Registrable Securities covered as may be requested by such registration, then the Requesting Holders in their Demand Request. The Company shall continue use its commercially reasonable efforts to cause any such Registration Statement to be obligated to effect a Demand Registration pursuant to this Section 4.2 of declared effective under the Registrable Securities included in Act as promptly as possible after such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)filing.
Appears in 3 contracts
Sources: Registration Rights Agreement (Melker Schorling AB), Registration Rights Agreement (Octave Intelligence PLC), Registration Rights Agreement (Octave Intelligence PLC)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Members (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, 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”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Members on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings LLC)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after six (6) month anniversary of the Closing Date (as defined in the Merger Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a4.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Public Offering”). In such case, (i) the Company Holders of a majority of the shares of Registrable Stock to be sold in the Underwritten Offering may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed Offering and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 5.8 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the of Company on its own behalf or on behalf of the Holderssecurities.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the an Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration and that does not exceed such Underwriters’ Maximum NumberNumber prior to the inclusion of other securities that have been requested to be so included by any other person, and such Registrable Securities to shall be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a). If (i) a registration requested pursuant to this Section 4.2 4.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 4.1 does not remain continuously effective until the earlier of forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationregistration or the completion of such distribution, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 4.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d4.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a).
Appears in 2 contracts
Sources: Stockholders Agreement (AV Homes, Inc.), Securities Purchase Agreement (AV Homes, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after expiration of the Closing Date (as defined transfer restrictions contained in the Merger AgreementSection 2.1(a), so long as the Holders Shareholders, collectively, Own at least 5.0% of the Voting Power of the Company, any Shareholder (a majority “Requesting Shareholder”) shall be entitled to make a written request of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of an amount of Registrable Securities that, when taken together with the amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting Shareholder’s Affiliates, equals or is greater than the Registrable Amount (based on the number of Registrable Securities outstanding on the date such Demand is made) (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities that the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 5.1(b); and
(iii) all Common Shares that the Company will not may elect to register in connection with any offering of Registrable Securities pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Shares, if any, to be obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Subject to Section 5.1(g), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held by with respect to which the Holders Company has received a written request for inclusion therein within ten (10) days after the initial Demand.
(c) The Shareholders, collectively, shall be included in a entitled to an aggregate of six (6) Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistrations.
(d) A registration will Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration (i) unless the Registration Statement relating a registration statement with respect thereto has been declared become effective by the SEC, and has remained effective for a period of at least 75% of the sixty (60) days (or such shorter period in which all Registrable Securities requested to be included in the registration by the Holders are included in such registrationDemand Registration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that (ii) if, after it has become effective, (i) such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of to any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, (iii) if the conditions to closing specified in the purchase agreement or if underwriting agreement entered into in connection with such Demand Registration are not satisfied as a consequence of any court prevents act or otherwise limits omission by the sale Company or (iv) the number of Registrable Securities requested for inclusion is materially reduced pursuant to Section 5.1(g).
(e) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company.
(f) The Company shall be entitled to postpone (upon written notice to all Shareholders) for up to an aggregate of ninety (90) days during any period of twelve (12) consecutive months the filing or the effectiveness of a registration statement for any Demand Registration if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities pursuant held by the Requesting Shareholder(s) shall have the right to the registration, and withdraw such Demand in each case less accordance with Section 5.3.
(g) The Company shall not include any securities other than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) Registration, except with the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement written consent of the distribution by the Holders of the Registrable Securities covered by Shareholders participating in such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 that hold a majority of the Registrable Securities included in such registrationDemand Registration. In circumstances If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Company) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the events described Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter can be sold without such adverse effect as follows and in the immediately two preceding sentences following order of this Section 4.2(d)priority: (i) first, each Holder up to the number of Registrable Securities shall requested to be permitted voluntarily included in such Demand Registration by the Shareholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Shareholders requesting such Demand Registration on the basis of the number of such securities requested to withdraw be included by such Shareholders and such Shareholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any part of its Registrable Securities from such other method determined by the Company.
(h) Any time that a Demand Registration at any time prior involves an Underwritten Offering, the Company shall select the investment banker or investment bankers and managers that will serve as lead and co-managing underwriters with respect to the commencement of marketing offering of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Registrable Securities.
Appears in 2 contracts
Sources: Shareholder Agreement (Marubeni Corp /Fi), Shareholder Agreement (Marubeni Corp /Fi)
Demand Registration. (ai) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), Upon written notice of the Holders of a majority of the then outstanding Registrable Securities shall have the right to require (on a common stock equivalent basis) requesting that the Company to effect a registration under the Securities Act of Registrable Securities and specifying the intended method or methods of distribution thereof (which may include a continuous or delayed offering), the Company shall prepare and file a Registration Statement registering for sale all or part of their respective Registrable Securities on Form S-3 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act, or other appropriate Form in the event Form S-3 is not available, covering the Registrable Securities then outstanding and shall use commercially reasonable efforts to cause such Registration Statement to become effective as expeditiously as possible and to remain effective until the Company earlier to occur of (i) specifying the number of date on which all Registrable Securities to be included in such registration covered by such Holder Registration Statement have been sold and the distribution contemplated thereby has been completed or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing date by which all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that covered thereby may be sold under Rule 144(k) (the Company has been so requested to register"Effectiveness Period"); provided, however, that (i) the Holders Purchaser shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by demands to register the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities pursuant to be included in such Underwritten Offering and (iithis Section 6(a)(i). A demand registration requested pursuant to this Section 6(a)(i) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared become effective by under the SECSecurities Act and remains effective for the period described above.
(ii) A Holder (including the Purchaser) or Holders requesting a registration pursuant to this Section 6(a) may, at least 75% any time prior to the effective date of the Registrable Securities requested Registration Statement relating to be included in the registration by the Holders are included in such registration, and revoke such request by providing a written notice to the Company has complied revoking such request.
(iii) The Company may include any other securities in all material respects with its obligations under any demand registration effected pursuant to this Agreement with respect theretoSection 6(a); provided, however, that if, after it has become effective, (iif the managing underwriter(s) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement representative(s) of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits several underwriters (the sale "Managing Underwriter") of a proposed underwritten public offering of Common Stock advises the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant intending to participate in such offering in writing that the Registration Statement, total amount or (ii) if, in the case kind of an Underwritten Offering, securities which such Holders and the Company fails intend to provide Full Cooperation, then include in such registration will be deemed not offering is sufficiently large to have been effected for purposes materially adversely affect the success of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationoffering, then the amount or kind of securities to be offered for the accounts of the Company shall continue be reduced pro rata to the extent necessary to reduce the total amount or kind of securities to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including proposed public offering to the events described amount or kind recommended by such Managing Underwriter and, if such reduction results in no securities being offered for the immediately two preceding sentences accounts of this Section 4.2(d)the Company in such proposed public offering, each Holder then the amount or kind of Registrable Securities securities to be offered for the account of the Company shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior reduced to the commencement extent necessary to reduce the total amount or kind of marketing of securities to be included in such Demand Registration, provided that proposed public offering to the amount or kind recommended by such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)managing underwriter or underwriters.
Appears in 2 contracts
Sources: Stock Purchase and Registration Rights Agreement (Northshore Asset Management LLC), Stock Purchase and Registration Rights Agreement (Startech Environmental Corp)
Demand Registration. (a) Subject Upon notice to the provisions hereofCompany from one or more Shareholders holding Restricted Shares having an aggregate fair market value of at least U.S.$15 million (based upon the then-prevailing market price for the Shares on the Nasdaq National Market or other principal securities market on which the Shares are listed or, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreementabsence of any such listing, as determined in good faith by the Board), such Shareholders (the Holders of a majority of Registrable Securities "Requesting Shareholders") shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act request (a “"Demand Registration”Request") by delivering in writing a written request therefor to the Company registration of such Restricted Shares. Each Demand Request shall (i) specifying specify the number of Registrable Securities Restricted Shares which each Requesting Shareholder intends to be included in such registration by such Holder sell or Holdersdispose of, and (ii) specifying whether state the intended method or methods by which the Requesting Shareholder intends to sell or dispose of disposition thereof is such Restricted Shares. Upon receipt of a Demand Request pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandthis Section 2.1, the Company shall (as requested) (i) cause to be filed, within the later of (x) promptly notify all Holders from whom 90 days of the request for registration has not been received date of delivery to the Company of the Demand Request and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under 180 days after the Securities Act and any other governmental requirements or regulations) effectiveness of the Registrable Securities that most recently filed registration statement by the Company, a registration statement covering such Restricted Shares which the Company has been so requested to register, providing for the registration under the Securities Act of such Restricted Shares to the extent necessary to permit the disposition of such Restricted Shares so to be registered in accordance with the intended method of distribution specified in such Demand Request; provided, however, that the Company may delay making such filing or taking such action by not more than ninety (i90) days in any 12-month period if the Holders shall Company, prior to the time it would otherwise have been required to file such registration statement or take such action (but not make including the preparation of the registration statement), determines in good faith that the filing of such registration statement or the taking of such action would require the disclosure of material, non-public information that, in the reasonable judgment of the Board, would be detrimental to the Company if so disclosed (and a request delay would be likely to reduce the detrimental effect of such disclosure or obviate the need for such disclosure to be made, or would otherwise adversely affect a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000financing, acquisition, disposition, merger or other material transaction), (ii) shall use its best efforts to have such registration statement declared effective by the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this AgreementCommission as soon as practicable thereafter, and (iii) refrain from filing any other registration statements with respect to any other securities of the Company will not until such date which is 180 days following effectiveness of the registration statement filed in response to the Demand Request; provided, however, that notwithstanding this clause (iii), each of Carlyle/Carlton and Hicks Muse shall be obligated permitted to effect more than make at least one (1) Demand Registration demand in any six (612-mon▇▇ ▇▇riod, subject to the limitations set forth in Section 2.1(c) month periodhereof. The underwriter shall be selected by the Requesting Shareholders and shall be reasonably acceptable to the Company for any registration pursuant to this Section 2.1.
(b) The offering In the event that the Company is required to file a registration statement covering any Restricted Shares of the Registrable Securities any Requesting Shareholders pursuant to Section 2.1(a) above, the Company shall be permitted to include newly-issued securities ("Piggyback Securities") in such Demand Registration may registration. Notwithstanding the foregoing, if the managing underwriter of such proposed registration determines and advises in writing that the inclusion of all Piggyback Securities proposed to be included in the form of an underwritten public offering (an “Underwritten Offering”). In such casewould interfere with the successful marketing of the Requesting Shareholders' Restricted Shares, (i) then the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably permitted to include any Piggyback Securities in excess of the amount, if any, of Piggyback Securities which the managing underwriter of such underwritten offering shall reasonably and in good faith agree in writing to include in such offering in excess of any amount to be registered for the Requesting Shareholders. The Piggyback Securities that are excluded from the underwritten public offering pursuant to the preceding sentence shall be withheld or delayed and (ii) from the market by the Company shall (together with for a period, not to exceed 180 days from the Holders proposing to distribute their securities through closing of such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with underwritten public offering, that the managing underwriter(sunderwriter determines is necessary in order to effect such underwritten public offering.
(c) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate comply with more than eight Demand Requests, such that the Shareholders will have the following Demand Requests: (i) Carlyle/Carlton shall have three such Demand Requests; (ii) Hicks Muse shall have three such Demand Requests; (iii) the El Sitio Fo▇▇▇▇▇s shall have, in the aggregate, two such Demand Requests. A request for registration shall not count as a Demand Request until (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement statement relating thereto has been declared effective by the SEC, Commission and (b) the Shareholder making the demand for registration is able to sell at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 2 contracts
Sources: Registration Rights Agreement (1945 Carlton Investments LLC), Registration Rights Agreement (Hicks Thomas O)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after six month anniversary of the Closing Date consummation by the Company of the IPO, if the Company shall receive a written request from a Sponsor or Sponsors holding outstanding Registrable Securities (as defined in the Merger Agreement)such requesting Persons, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholders”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities 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, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least ten (10) days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 7.01, and
(ii) subject to the restrictions set forth in Section 7.01(d), all other Registrable Securities that any other governmental requirements or regulationsStockholders (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within seven (7) 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 no Person may participate in any registration statement pursuant to this Section 7.01(a) unless such Person agrees to sell their Registrable Securities to the Company has been so requested underwriters selected as provided in Section 7.05(f) on the same terms and conditions as apply to registerthe Requesting Stockholders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to no such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder Registering Stockholders shall be required to make any representations and warranties toor warranties, or agreements withprovide any indemnity, in connection with any underwriter in a such registration other than customary representationsrepresentations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, warranties her or its Registrable Securities to be transferred free and agreements clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Registering Stockholder as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each Holder such Person will be in respect of any indemnificationproportion thereto; and provided, contribution or other obligation of further, that such Holder arising under such underwriting agreement (a) shall liability will be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statementto, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to received by such Holder (after deduction of all underwriters’ discounts and commissions) Person from the disposition sale of the his, her or its Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on registration; provided that, the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included in the registration by the Holders are included all Registering Stockholders in such registrationDemand Registration are at least $25,000,000.
(b) Promptly after the expiration of the seven-day period referred to in Section 7.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution number of shares of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationtherein. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at At any time prior to the commencement effective date of marketing the registration statement relating to such registration, a majority of 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.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected; provided that such registration nonetheless holders of Registrable Securities shall count pay all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Stockholder, except for the fees and disbursements of the Stockholders borne and paid by the Company as a Registration Expense.
(d) If a Demand Registration for purposes involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of clause Registrable Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold (ii) of the proviso “Demand Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to Section 4.2(a).the Demand Maximum Offering Size:
Appears in 2 contracts
Sources: Stockholders Agreement (INC Research Holdings, Inc.), Stockholders Agreement (INC Research Holdings, Inc.)
Demand Registration. (a) Subject One or more Requesting Shareholders shall be entitled to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of an amount of Registrable Securities that, in the aggregate taking into account all of the Requesting Shareholders, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued as promptly as practicable under the Securities Act of:
(i) the offer and any other governmental requirements or regulations) sale of the Registrable Securities that which the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 2.1(b); and
(iii) all equity securities of the Company will not which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 2.1; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Shares, if any, to be obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such Each Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, if then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Within five (5) business days after receipt of a Demand, the Company shall give written notice of such Demand to all other Shareholders, if any. Subject to Section 2.1(h), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held with respect to which the Company has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been mailed. Such written request shall comply with the Holders requirements of a Demand as set forth in this Section 2.1(b).
(c) Demand Registrations shall be included in on (i) if option (ii) and (iii) below are not available, Form S-1 or any similar long-form registration (“Long-Form Registration”), (ii) if option (iii) below is not available, Form S-3 or any similar short form registration, if such short form registration is then available to the Company, or (iii) Form S-3ASR if the Company is, at the time a Demand is made, a Well-Known Seasoned Issuer (a Demand Registration without under each of clauses (ii) and (iii), a “Short-Form Registration”), in each case, in compliance with the prior written consent Securities Act and in the form of registration statements that the holders Company has customarily prepared and filed with the SEC for issuances of a majority in interest of the Registrable Securitiesits Shares. The Company shall not be required to effect more than two Long-Form Registrations per fiscal year.
(d) Effective Demand Registration. A registration will Demand Registration shall not be deemed to have been effected as effected:
(i) unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared effective by the SEC, at least 75% SEC and remains effective in compliance with the provisions of the Securities Act and the laws of any U.S. state or other jurisdiction applicable to the disposition of Registrable Securities requested covered by such registration statement until such time as all of such Registrable Securities shall have been disposed of in accordance with such registration statement or there shall cease to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that any Registrable Securities;
(ii) if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Entities or court for any reason other governmental or administrative agency, or if than a violation of applicable law solely by any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, Selling Shareholder and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or has not thereafter become effective;
(iiiii) if, in the case of an Underwritten Offering, the conditions to closing specified in an underwriting agreement applicable to the Company fails are not satisfied or waived other than by reason of any breach or failure by any Selling Shareholder; or
(iv) if the Company effects a postponement, declares a Suspension Period or similarly delays the exercise of rights under this Agreement pursuant to provide Full Cooperationthe terms in the paragraph below or the terms of this Agreement generally. Notwithstanding the foregoing, then such registration will the Company shall not be deemed not obligated to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) maintain the effectiveness of a registration requested Long-Form Registration, filed pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration Registration, for a period longer than 75 days or (ii) effect any Demand Registration (A) within six (6) months of the effective date of a registration requested statement with respect to a “firm commitment” Underwritten Offering in which all Piggyback Sellers were given “piggyback” rights pursuant to this Section 4.2 does 2.2 (and at least 50% of the number of Registrable Securities requested by such Piggyback Sellers to be included in such Demand Registration were included), (B) within three (3) months of the effective date of a registration statement with respect to any other Demand Registration, (C) within 90 days from the date on which a Marketed Underwritten Offering was priced or (D) if, in the reasonable judgment of the Board, it is not remain continuously effective until fortyfeasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements or financial information, provided that the Company shall use commercially reasonable efforts to obtain such financial statements or financial information as promptly as practicable. In addition, the Company shall be entitled to postpone (upon written notice to all Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice in any period of twelve (12) consecutive months and in no event for more than an aggregate of one-hundred twenty (120) days in any three-hundred sixty-five (45365) days after consecutive day period) if the commencement Board determines in its reasonable judgment that the filing or effectiveness of the distribution by registration statement relating to such Demand Registration would cause the Holders disclosure of the Registrable Securities covered by such registrationmaterial, then non-public information that the Company shall continue to be obligated to effect has a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d)bona fide business purpose for preserving as confidential, each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationprovided, provided however, that such registration nonetheless postponement shall count terminate at such time that such information is no longer material, non-public information or the Company no longer has a bona fide business purpose for preserving such information as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)confidential.
Appears in 2 contracts
Sources: Registration Rights Agreement (Apollo Management Holdings GP, LLC), Transaction Agreement (Apollo Global Management, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities written request by THL that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to portion of the Company (i) THL Entities' Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "THL Demand Registration") promptly notify all Holders from whom at least five days prior to the request for anticipated filing date of the registration has not been received statement relating to such THL Demand Registration to the Non-THL Shareholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that of the THL Entities which the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) subject to the Holders will not be entitled restrictions set forth in Section 5.2, all other Registrable Securities of the same class as that to require which THL's request relates for which an effective Piggyback Registration (as such term is defined in Section 5.2) request has been made; provided, that subject to Section 5.1(d) hereof, the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will shall not be obligated to effect more than six THL Demand Registrations. In no event will the Company be required to effect more than one (1) THL Demand Registration in within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 2-day period referred to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i5.2(a) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for will notify all the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed Shareholders to be included in such registration exceeds the Underwriters’ Maximum Number, then THL Demand Registration (ithe "Holders") of the Company shall so advise all other Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holdertherein. No shares of Common Stock held by THL may, at any Person other than Registrable Securities held by time prior to the Holders shall be included in a Demand Registration without the prior written consent effective date of the holders of a majority in interest registration statement relating to such registration, revoke such request, without liability to any of the Registrable Securitiesother Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall not be considered a THL Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any THL Demand Registration.
(d) A registration will requested pursuant to this Section 5.1 shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoregistration have actually been sold thereunder); provided, however, that if, if after it has become effective, any registration statement requested pursuant to this Section 5.1 becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (y) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances registration statement has been sold thereunder, such registration statement shall not including be considered a THL Demand Registration, or (ii) if the events described Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(e) such that less than 66 2/3% of the immediately two preceding sentences Registrable Securities of this Section 4.2(d)the THL Entities sought to be included in such registration are included.
(e) If a THL Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and THL that, each Holder in its view, (i) the number of shares of Registrable Securities shall requested to be permitted voluntarily included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested by THL to be registered and all Registrable Securities requested to be included in such registration by any other Holder pursuant to an effective Piggyback Registration request (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the THL Entities and such Holders on the basis of the relative number of Registrable Securities held by such Shareholder); and
(B) second, any securities proposed to be registered by the Company. provided, however, that in such case, any Holder may elect to withdraw all or any part of its such Holder's Registrable Securities from the registration.
(f) Upon written notice to THL, the Company may postpone effecting a Demand Registration at registration pursuant to this Section 5.1 on one occasion during any period of six consecutive months for a reasonable time prior to specified in the commencement notice but not exceeding 90 days (which period may not be extended or renewed), if (i) an investment banking firm of marketing recognized national standing shall advise the Company and THL in writing that effecting the registration would materially and adversely affect an offering of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes securities of clause the Company the preparation of which had then been commenced or (ii) the Company has a bona fide business reason for determining that it is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the proviso Company.
(g) After the Company has effected two Demand Registrations pursuant to this Section 4.2(a5.1 of Common Stock, the Institutional Shareholders, upon request of such Institutional Shareholders owning a majority of the Shares acquired by such Institutional Shareholders on the Closing Date, may request that the Company register shares of Registrable Securities then owned by such Institutional Shareholders (an "Institutional Shareholder Demand Registration"). In no event will the Company be required to effect more than one such Institutional Shareholder Demand Registration. The provisions of this Article 5 shall apply, mutatis mutandis, to any such Institutional Shareholder Demand Registration.
(h) After the Transfer of Shares of Common Stock representing more than 20% of the Shares collectively owned by the Equity Investors of the Initial Ownership on a Fully Diluted basis owned by such Equity Investors, the Primary Executives may request that the Company register Shares which are Registrable Securities then owned by them (a "Primary Executive Demand Registration"). In no event will the Company be required to effect more than three such Primary Executive Demand Registrations. The provisions of this Article 5 shall apply, mutatis mutandis, to any such Primary Executive Demand Registration; provided, that, notwithstanding anything to the contrary herein, (i) no Primary Executive Demand Registrations may be made during the six month period following the Effective Time or within six months after the effective date any other registration statement (other than registration statement on From S-4 or S-8 or similar form), and (ii) the Company must use its best efforts to effect such Primary Executive Demand Registration as soon as practicable, but in no event later than 120 days following the date of the demand.
Appears in 2 contracts
Sources: Investors' Agreement (Fisher Scientific International Inc), Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Demand Registration. (a) Subject At any time prior to such time as the rights under this Section 2 terminate with respect to a Holder as provided in Section 2(e) hereof, upon written notice from such Holder in the manner set forth in Section 12(h) hereof requesting that the Company effect the registration under the Securities Act of any or all of the Registrable Securities held by such Holder, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Company shall use its best efforts to effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including in an offering on a delayed or continuous basis under Rule 415 (or any successor rule of similar effect) promulgated under the Securities Act), provided that:
(i) if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), the Holder or Holders making such request are advised in writing that the Company has in good faith commenced the preparation of a registration statement for an underwritten public offering prior to receipt of the notice requesting registration pursuant to this Section 2(a) and the managing underwriter of the proposed offering has determined that in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect the offering that is contemplated by the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) (a "Transactional Deferral") until the earliest of (A) the abandonment of such offering by the Company, (B) 60 days after receipt by the Holder or Holders requesting registration of the managing underwriter's written opinion referred to above in this clause (i), unless the registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, and (C) if the registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, the day on which the restrictions on the Holders contained in Section 10 hereof lapse, provided, however, that the Company shall not be permitted to delay a requested registration in reliance on this clause (i) more than once in any 12-month period;
(ii) if, while a registration request is pending pursuant to this Section 2(a), the Company determines, following consultation with and receiving advice from its legal counsel, that the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential and the disclosure of which the Company determines reasonably and in good faith would have a material adverse effect on the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (A) the date upon which such material information is otherwise disclosed to the provisions hereof, at any time on public or after the date that is 180 ceases to be material and (B) 90 days after the Closing Date Company makes such determination;
(as defined iii) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) prior to 180 days following the closing of the Public Offering, (B) within a period of 90 calendar days after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a), or (C) if such registration request is for a number of Registrable Securities having a Fair Market Value on the business day immediately preceding the date of such registration request of less than $100,000,000; and
(iv) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) in the Merger Agreement)case of a registration request by REI or any Permitted Transferee that has acquired, in the Holders of transaction in which it became a Permitted Transferee, at least a majority of the then issued and outstanding Voting Stock, on more than three occasions after such time as REI or such Permitted Transferee, as the case may be, owns less than a majority of the voting power of the outstanding capital stock of the Company (it being acknowledged that so long as REI or such Permitted Transferee owns a majority of the voting power of the outstanding capital stock of the Company, there shall be no limit to the number of occasions on which REI or such Permitted Transferee may exercise such rights), or (B) in the case of a Holder other than REI or a Permitted Transferee described in clause (A) above, on more than the number of occasions permitted such Holder in accordance with Section 11 hereof.
(b) Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (A) unless the registration statement filed in connection therewith has become effective, (B) if after such registration statement has become effective, it becomes subject to any stop order, or there is issued an injunction or other order or decree of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of the Registrable Securities so registered prior to the completion of the distribution thereof in accordance with the plan of distribution set forth in the registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied by reason of some act, misrepresentation or omission by the Company and are not waived by the purchasers or underwriters; and
(ii) nothing herein shall modify a Holder's obligation to pay Registration Expenses, in accordance with Section 4 hereof, that are incurred in connection with any withdrawn registration requested by such Holder.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the Fair Market Value of the Registrable Securities to be registered in connection with such offering shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering, and the Company shall have the right to designate one underwriter reasonably satisfactory to such Holders as a co-manager of such underwritten offering.
(id) specifying The Company shall have the number right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by any Holder pursuant to Section 2(a) only to the extent the managing underwriter or other independent marketing agent for such offering (if any) determines that, in its opinion, the additional securities proposed to be sold will not materially and adversely affect the offering and sale of the Registrable Securities to be included registered in accordance with the intended method or methods of disposition then contemplated by such Holder. The rights of a Holder to cause the registration of additional Registrable Securities held by such Holder or Holders, (ii) specifying whether the intended method in any registration of disposition thereof is Registrable Securities requested by another Holder pursuant to an Underwritten Offering (as defined below), and (iiiSection 2(a) containing all information about such Holder required to shall be included in such Registration Statement in accordance with applicable law. As soon as practicable after governed by the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) agreement of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this with respect thereto as provided in Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period11(a).
(be) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) file a registration requested statement relating to a registration request by a Holder pursuant to this Section 4.2 is deemed not to have been effected 2 from and after such time as a Demand Registration such Holder first owns Registrable Securities representing (assuming for this purpose the conversion, exchange or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement exercise of all Registrable Securities then owned by such Holder that are convertible into or exercisable or exchangeable for Voting Stock of the distribution by the Holders Company) less than 10% of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 issued and outstanding Voting Stock of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Reliant Energy Resources Corp), Registration Rights Agreement (Reliant Resources Inc)
Demand Registration. (a) Subject to the provisions hereof, at any Any time on or after the date that is earlier of (i) December 31, 2018 and (ii) 180 days after the Closing Date (as defined in the Merger Agreement)a Qualified IPO, the Holders of a majority of Registrable Securities shall have the right to require an Investor Majority may notify the Company in writing that they intend to file a Registration Statement registering offer or cause to be offered for public sale all or part any portion of their respective Registrable Securities under in the Securities Act (a “Demand Registration”) by delivering a written request therefor to manner specified in such request. Upon receipt of such request, the Company (i) specifying the number shall promptly deliver notice of such request to all Investors holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for written notice and in such event the right of any Person to participate in such registration has not been received shall be conditioned upon such Person’s participation in such underwritten public offering and (y) the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable its best efforts to effect expeditiously file a Form S-1 covering all Registrable Securities whose holders request participation in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of Act, but only to the Registrable Securities that the Company has been so requested to registerextent provided for in this Agreement; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) pay for registration pursuant to a request under this Section 2 more than two (2) Underwritten Offerings times. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating shareholders; provided, however, that the holders that participate in such registration pursuant to this Section 2(a) and hold at least sixty percent (1260%) month periodof Registrable Securities (the “Withdrawing Holders”) may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and the Withdrawing Holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, however, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) Registrable Securities of holders who did not make the original request for registration and (v) Registrable Securities of holders who requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities pursuant to be allocated pro rata among the Holders thereof on the basis Section 2(a). If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iv) or (v), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority two-thirds (2/3) in interest of the Registrable Securities.
Securities to be sold in such offering (d) A registration which approval will not be deemed unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to have been effected as implement an employee benefit plan or a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% transaction to which Rule 145 of the Registrable Securities requested Act is applicable) to be included in become effective within one hundred twenty (120) days following the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dicerna Pharmaceuticals Inc), Registration Rights Agreement (Dicerna Pharmaceuticals Inc)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Members (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, 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”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Stockholders on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at At any time and from time to time on or after the date that is 180 days and/or after the Closing Date Date, each Holder shall severally have the option and right, exercisable by delivering a written notice to Parent (as defined in the Merger Agreementa “Demand Notice”), the Holders of a majority of Registrable Securities shall have the right to require Parent to, pursuant to the Company terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering for the offering and sale all or part of their respective the number and type of Registrable Securities under on the Securities Act terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying ). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Parent be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2.1(b) have an aggregate value of at least $200 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice; provided, however, that the Minimum Amount shall not apply in the event that, as the result of Cut Back Shares being removed from such Registration Statement pursuant to this Section 2.1(a), the Registrable Securities of the Holders to be included therein after compliance with Section 2.1(b) have an aggregate value of less than $200 million. If at any time the Commission takes the position that some or all of the Registrable Securities proposed to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is a Registration Statement filed pursuant to an Underwritten Offering a Demand Registration must be removed from such Registration Statement (as defined below)such portion of the Registrable Securities, and (iiithe “Cut Back Shares”) containing in order for all information about of the Registrable Securities in such Holder required Registration Statement filed pursuant to a Demand Registration to be eligible to be made on a delayed or continuous basis under the provisions of Rule 415 or for the Initiating Holder to not be named as an “underwriter” in such Registration Statement, then if the Initiating Holder so elects, Parent shall remove the Cut Back Shares from such Registration Statement. Any Cut Back Shares so removed pursuant to this Section 2.1(a) shall be allocated among the Holders including Registrable Securities for resale on such Registration Statement on a pro rata basis. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of Section 2.1(c) if, as a result of the cutback provisions in this Section 2.1(a) or Registrable Securities of Holders other than the Initiating Holder included in such Demand Registration pursuant to Section 2.1(b), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $200 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(b) Within five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, Parent shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if Parent is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the limitations of this Section 2.1, file a Registration Statement in accordance with applicable law. As soon as practicable after the receipt terms and conditions of such demandthe Demand Notice, the Company which Registration Statement shall (x) promptly notify cover all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a in writing request for a to be included in the Demand Registration under (such request to be given to Parent within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by Parent pursuant to this Section 4.2(a) for 2.1(b)). Parent shall use reasonable best efforts to cause such Registration Statement to become and remain effective (including using reasonable best efforts to file a Registration Statement including Registrable Securities having an anticipated aggregate offering price included on any previous Registration Statement that ceases to be effective, which, for the avoidance of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval doubt shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into considered an underwriting agreement in customary form additional Demand Registration for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to Section 2.1(c)) under the Securities Act until all such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees securities registered for resale thereunder cease to sell its be Registrable Securities on (the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders“Effectiveness Period”).
(c) IfSubject to the other limitations contained in this Agreement, Parent is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering (or such shorter time as Parent may notify the Holders in writing) (any such time period, a “No Demand Period”), (B) more than a total of four Demand Registrations in the aggregate; provided, that notwithstanding anything to the contrary herein, in connection with an Underwritten Offeringno event shall Parent be required to effect more than two Demand Registrations within a given calendar year, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (iiC) the Company will be obligated and required a subsequent Demand Registration pursuant to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis a Demand Notice if a Registration Statement covering all of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be included deemed to have occurred for purposes of this Section 2.1(c) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in a which case the Initiating Holder shall be entitled to an additional Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitieslieu thereof.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECHolder (and, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationif applicable, and the Company has complied in Carlyle) may withdraw all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale portion of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the its Registrable Securities included in a Demand Registration from such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effectiveness of marketing the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder (and, if applicable, Carlyle) to the effect that the Holder (and, if applicable, Carlyle) is withdrawing an amount of its Registrable Securities such that the remaining amount of Registrable Securities to be included in the Demand Registration is below the Minimum Amount, Parent may cease all efforts to secure effectiveness of the applicable Registration Statement, unless one or more Holders other than the withdrawing Holder(s) shall promptly request Parent in writing to include additional Registrable Securities in the Demand Registration such that amount of Registrable Shares to be included in the Demand Registration satisfies the Minimum Amount (a “Requisite Holder Substitution”). In the absence of a Requisite Holder Substitution, such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2.1(c) unless (A) the Initiating Holder shall have paid or reimbursed Parent for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by Parent in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to Parent’s request for suspension pursuant to Section 3.15.
(e) Parent may include in any such Demand Registration other Parent Securities for sale for its own account or for the account of any other Person, subject to Section 2.3(c).
(f) Subject to the limitations contained in this Agreement, Parent shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by Parent and (B) subject to applicable law and the requirements of the Commission, as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that, subject to Section 3.15, (X) if the Registration Statement is on Form S-1, Parent shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission (provided that Form S-1 is then available for sales on a delayed or continuous basis under the provisions of Rule 415 in respect of such Demand Registration), provided that such registration nonetheless shall count as and (Y) if Parent becomes, and is at the time of its receipt of a Demand Notice eligible to use Form S-3, the Demand Registration for purposes any offering and selling of clause Registrable Securities shall be registered on Form S-3 or any equivalent or successor form under the Securities Act (iiif available to Parent) and (Z) if at the time of its receipt of a Demand Notice, Parent is a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be registered on an Automatic Shelf Registration Statement on Form S-3 or any equivalent or successor form under the Securities Act (if available to Parent). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Parent that it intends to effect an offering of all or part of the proviso Registrable Securities included on such Registration Statement, Parent will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(g) Without limiting Article III, in connection with any Demand Registration pursuant to and in accordance with this Section 4.2(a)2.1, Parent shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Parent would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(h) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, Parent shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall Parent be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) Parent has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (WildHorse Resource Development Corp), Registration Rights Agreement (Chesapeake Energy Corp)
Demand Registration. (a) Subject (i) Provided that the Company does not have the Registration Statement filed pursuant to the provisions hereofSection 2 effective and usable to such Holder or group of Holders requesting a Demand Registration under this Section, at any time on or after the date that is 180 days after the Closing Date (as defined Company becomes a registrant under the Exchange Act, any Holder or group of Holders holding, in the Merger Agreementaggregate, ten percent (10%) or more of the Registrable Securities issued and outstanding immediately following the effective date of the Plan (the “Initial Outstanding Amount”), the Holders of a majority of Registrable Securities shall have the right right, by written notice given to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand RegistrationNotice”) by delivering a written ), to request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), register under and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt provisions of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and all or any other governmental requirements or regulations) portion of the Registrable Securities that the Company has been so requested to registerdesignated by such Holder(s); provided, however, that (ix) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price requested to be registered constitute at least ten percent (10%) of less than $5,000,000the Initial Outstanding Amount, and (iiy) prior to the Holders will not 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 require the Company to effect more than 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 becomes eligible for use of Form S-3 (or any successor form), any Holder or group of Holders holding, in the aggregate under this Agreementaggregate, and ten percent (iii10%) or more of the Initial Outstanding Amount, shall have the right to request the Company will not be obligated to effect more than one (1) Demand Registration register under and in accordance with the provisions of the Securities Act all or any six (6) month period.
(b) The offering portion of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of designated by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoHolder(s); provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or represent at least ten percent (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii10%) of the proviso to Section 4.2(a). If Initial Outstanding Amount, provided, however, that there shall be no more than five (i5) a registration requested Demand Registrations pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tronox Inc), Equity Commitment Agreement (Tronox Inc)
Demand Registration. (ai) Subject to the provisions hereof, at Request for Registration. At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)time, the Holders of a majority Purchased Shares representing not less than 25% of the aggregate number of Registrable Securities (or any lesser amount if the request relates to all remaining Registrable Securities) (the "Demand Party") may make two written requests for registration under the Act of their Registrable Securities (a "Demand Registration"); provided, that no transferee of the Investors or of any such transferee shall have be permitted to request a registration pursuant to this Section 2(a) unless the right to require make such a request was specifically transferred by the Company Investors (or any transferee) to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written such transferee. Any such request therefor to the Company (i) specifying shall specify the number of Registrable Securities proposed to be included in such registration by such Holder or Holders, (ii) specifying whether sold and will also specify the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required method of disposition to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, Company if it is other than a firm commitment underwritten public offering (which approval shall not be unreasonably withheld or delayed and (ii) withheld). Subject to the other provisions of this Section 2(a), the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation give written notice of such Holder arising under such underwriting agreement (a) shall be limited registration request within 10 days after the receipt thereof to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or all other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf Holders. Within 15 days after receipt of such Holder expressly for inclusion therein and (b) shall not in notice by any eventHolder, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate request in any such Underwritten Offering unless such Holder agrees to sell writing that its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds (whether or not such Registrable Securities are of the Underwriters’ Maximum Number, then (isame series or class as the Registrable Securities that were the subject of the original demand) and the Company shall so advise all Holders of include in the Demand Registration the Registrable Securities of any such Holder requested to be included in so included. Each such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of request shall specify the number of Registrable Securities requested proposed to be included therein by each sold and the intended method of disposition thereof, such Holder. No shares method of Common Stock held by any Person disposition to be subject to the approval of the Company if it is other than Registrable Securities held by a firm commitment underwritten public offering (which approval shall not be unreasonably withheld). Upon a demand, the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.Company will:
(dx) A registration will not be deemed prepare and file within 30 days after a request has been made and use its reasonable best efforts to have been effected cause to become effective as promptly as reasonably commercially practicable (but in any event use its reasonable best efforts to cause to become effective within 90 days of such demand) a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% in respect of all the Registrable Securities requested to be included in the registration by the which Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretorequest for inclusion therein; provided, however, that if, after it has become effective, and
(iy) keep such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five for the shorter of (45A) 90 days after the commencement and (B) such period of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 time as all of the Registrable Securities included in such Registration Statement have been sold thereunder (the shorter of (A) or (B), the "Effectiveness Period"); provided, that if such demand occurs during a Black Out Period (as defined below) or other period (not to exceed 180 days) during which the Company is prohibited or restricted from issuing or selling securities pursuant to any underwriting or purchase agreement relating to an underwritten Rule 144A offering or registered public offering of securities (a "Lock Up Period"), the Company shall notify the Demand Party of the basis therefore and shall not be required to notify the Holders of such demand or file such Registration Statement prior to the end of the Black Out Period or Lock Up Period, as the case may be, in which event, the Company will use its reasonable best efforts to cause such Registration Statement to become effective no later than the later of (A) 150 days after the original demand and (B) 90 days after the end of the Black Out Period or Lock Up Period, as the case may be; and provided, further, that the Company may postpone the filing of any Registration Statement (and, in the case of a Pending Event Suspension Period only, suspend the effectiveness of any registration, suspend the use of any Prospectus and shall not be required to amend or supplement the Registration Statement, any related Prospectus or any document incorporated therein by reference (other than an effective Registration Statement being used in an underwritten offering)) (A) for a period not to exceed an aggregate of 90 days (a "Pending Event Suspension Period") in the event that (1) an event or circumstance occurs and is continuing that has not been publicly disclosed and, if not disclosed in the Registration Statement, any related Prospectus or any document incorporated therein by reference as then amended or supplemented would, in the Company's good faith reasonable judgment, result in the Registration Statement, any related Prospectus or any such document containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein, or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (2) in the good faith judgment of the Board of Directors of the Company (the "Board"), after consultation with its outside securities counsel, the Company has a bona fide business purpose for not then disclosing the existence of such event or circumstance or (B) in the event that the Company, for its own account or the account of others, has pending or is currently engaged in the process of and proposes to register shares of Common Stock for sale in an underwritten public offering on Form ▇-▇, ▇-▇ or S-3, their successor forms or any other form under the Securities Act appropriate for a public offering of such securities (other than a registration on Form S-8), for a period not to exceed 60 days after the consummation of such public offering (a "Pending Registration Suspension Period" and, together with a Pending Event Suspension Period, a "Black Out Period"); provided, further, that the Effectiveness Period shall be extended by the number of days in any Black Out Period occurring during the Effectiveness Period. In circumstances not including the events described in event of the immediately two preceding sentences occurrence of this Section 4.2(d)any Black Out Period or Lock Up Period, each Holder the Company will promptly notify the Holders of Registrable Securities thereof in writing. If the Company shall be permitted voluntarily postpone the filing of a Registration Statement, the Holders of Registrable Securities requesting registration thereof shall have the right to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior the request for registration by giving written notice to the commencement Company within 30 days after receipt of marketing notice of postponement from the Company and, in the event of such Demand Registrationwithdrawal, provided that such registration nonetheless request shall count as a Demand Registration not be counted for purposes of clause (ii) of the proviso requests permitted to be made under this Section 4.2(a2(a). The Company shall not be permitted to assert more than one Black Out Period in any consecutive 180-day period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cabletron Systems Inc), Registration Rights Agreement (Aprisma Management Technologies Inc)
Demand Registration. (a) Subject to the provisions hereof, The Company hereby agrees that at any time on or after the date that is 180 days after one year from the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require Purchaser may request that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of 1933, as amended (the "Securities Act") of all or part of their respective Registrable Securities the Purchased Securities, and thereupon will, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Purchased Securities that which the Company has been so requested to registerregister by the Purchaser, all to the extent requisite to permit the disposition of the Purchased Securities so to be registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (afile any such registration statement under this Section 9(a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by unless the underwriter(s) in any prior underwritten anticipated aggregate gross offering conducted by the Company on its own behalf or on behalf of the Holdersprice is at least $2,000,000.
(ci) If, The Company shall pay all of the expenses in connection with an Underwritten Offeringthe registration statement filed pursuant to this Section 3(a), except for underwriting discounts and commissions and transfer taxes, including, but not limited to the managing underwriter(s) advise reasonable attorneys fees of one counsel selected by the Company that in its or their reasonable opinion the number of securities proposed to be included in such Purchaser, which shall not exceed $1,000 per effective registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and statement.
(ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration requested pursuant to this Section 9(a) will not be deemed to have been effected as unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretobecome effective; provided, however, that if, within 180 days after it has become effective, (i) the offering of the Purchased Securities pursuant to such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Securities and Exchange Commission (the "SEC") or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause effected.
(iiiii) of the proviso to Section 4.2(a). If (i) a requested registration requested pursuant to this Section 4.2 is deemed not 9(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of securities requested to be included in such registration exceeds the number which can be reasonably sold in such offering, the Company will include in such registration first, securities offered by the Company, second, the Purchased Securities which have been effected as a Demand Registration or (ii) the registration requested to be registered pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement 9(a), third, an amount of securities of the distribution by Company which the Holders Company is including in such registration statement pursuant to any incidental ("piggyback") registration rights, and fourth, the amount of other securities ("Other Securities") of the Registrable Securities covered Company held by all other security holders which, in the good faith opinion of such registrationmanaging underwriter, then can be sold without causing a material adverse effect on the offering.
(iv) The Company shall continue to be obligated to effect a Demand Registration register Purchased Securities pursuant to this Section 4.2 9(a) only once provided that if the number of Purchased Securities requested by the Purchaser to be included in a Registration Statement requested by the Purchaser pursuant to Section 9 (a) is cut back, the Purchaser shall have the right, no earlier than one year following effectiveness of the Registrable first demand registration, to request a second Registration Statement to register the Purchased Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)so registered.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nam Corp), Stock Purchase Agreement (Insurance Services Office Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date effective date of the registration statement for the IPO of the Company’s Common Stock, either Investor (as defined the “Initiating Holder”) may notify the Company that it intends to offer or cause to be offered for public sale all or any portion of its Registrable Securities in the Merger Agreement)manner specified in such request. Upon receipt of such request, the Holders Company shall promptly deliver notice of a majority such request to all other holders of Registrable Securities who shall then have ten (10) days to notify the Company in writing of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to require participate in such registration shall be conditioned upon such Person’s participation in such underwritten public offering and the Company to file a Registration Statement registering for sale all or part inclusion of their respective such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable best efforts to expeditiously effect (but in any event no later than ninety (90) days after such request) the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act, but only to the extent provided for in this Agreement; provided however, that the Company shall not be required to effect registration pursuant to a request under this Section 2 (i1) specifying more than three (3) times for each Investor, or (2) if the number of Registrable Securities proposed to be included in such registration are expected to have an aggregate sale price (net underwriting discounts and commissions, if any) less than $50,000,000. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within one hundred twenty (120) days after the effective date of a registration statement filed by such Holder or Holders, (ii) specifying whether the intended method Company covering a firm commitment underwritten public offering in which the holders of disposition thereof is Registrable Securities shall have been entitled to join pursuant to an Underwritten Offering (Section 4 and in which there shall have been effectively registered all Registrable Securities as defined below), to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) unless and (iii) containing all information about until the registration statement relating to such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under declared effective by the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerCommission; provided, provided however, that (i) the Holders shall not make participating Investors holding a request for a Demand Registration under this Section 4.2(a) for majority of the Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, being registered by all participating Investors (a “Participating Majority”) or (ii) the Holders will Initiating Holder, only to the extent no such Investor holds a majority of the Registrable Securities being registered by all participating Investors, may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not be entitled to require yet been declared effective, and a Participating Majority (or Initiating Holder, as applicable) may thereafter request the Company to effect more than three (3) Demand Registrations reinstate such registration statement, if permitted under the Securities Act, or to request that the Company file another registration statement, in accordance with the procedures set forth herein and without reduction in the aggregate number of demand registrations permitted under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodSection 2(a).
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of If a requested registration involves an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate and the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made offering determines in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) Registrable Securities requested by of the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum NumberManagement Stockholders, such and (vi) Registrable Securities to be allocated pro rata among of the Holders thereof on the basis Investors. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (v) or (vi), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch holders).
(dc) A With respect to a request for registration will not pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective chosen by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration Participating Majority or (ii) the registration requested pursuant Initiating Holder, only to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders extent no such Investor holds a majority of the Registrable Securities covered being registered by such registration, then the Company shall continue to all participating Investors (which approval will not be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all unreasonably withheld or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(adelayed).
Appears in 2 contracts
Sources: Registration Rights Agreement (Intapp, Inc.), Registration Rights Agreement (Intapp, Inc.)
Demand Registration. (a) Subject At any time prior to such time as the rights under this Section 2 terminate with respect to a Holder as provided in Section 2(e) hereof, upon written notice from such Holder in the manner set forth herein requesting that the Company effect the registration under the Securities Act of any or all of the Registrable Securities held by such Holder, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Company shall use its best efforts to effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including in an offering on a delayed or continuous basis under Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act, if (x) the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering and (y) the Company consents to such an offering (except that no consent of the Company will be required if the contemplated offering on a delayed or continuous basis under Rule 415 is the offering of Registrable Securities upon the exercise, exchange or conversion of Exchangeable Securities as contemplated by Section 6 hereof)), provided that:
(i) if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), the Holder or Holders making such request are advised in writing that the Company has in good faith commenced the preparation of a registration statement for an underwritten public offering prior to receipt of the notice requesting registration pursuant to this Section 2(a) and the managing underwriter of the proposed offering has determined that in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect the offering that is contemplated by the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) (a "Transactional Deferral") until the earliest of (A) the abandonment of such offering by the Company, (B) 60 days after receipt by the Holder or Holders requesting registration of the managing underwriter's written opinion referred to above in this clause (i), unless the registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, and (C) if the registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, the day on which the restrictions on the Holders contained in Section 10 hereof lapse, provided, however, that the Company shall not be permitted to delay a requested registration in reliance on this clause (i) more than once in any 12-month period;
(ii) if, while a registration request is pending pursuant to this Section 2(a), the Company determines, following consultation with and receiving advice from its legal counsel, that the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential and the disclosure of which the Company determines reasonably and in good faith would have a material adverse effect on the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (A) the date upon which such material information is otherwise disclosed to the provisions hereof, at any time on public or after the date that is 180 ceases to be material and (B) 90 days after the Closing Date Company makes such determination;
(as defined iii) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) prior to the first anniversary of the closing of the Public Offering, (B) within a period of 365 calendar days after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a), or (C) if such registration request is for a number of Registrable Securities having a Fair Market Value on the 3 4 business day immediately preceding the date of such registration request of less than $50,000,000.00; and
(iv) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) in the Merger Agreement)case of a registration request by Zapa▇▇ ▇▇ any Permitted Transferee that has acquired, in the Holders of transaction in which it became a Permitted Transferee, at least a majority of the then issued and outstanding Voting Stock, on more than three occasions after such time as Zapa▇▇ ▇▇ such Permitted Transferee, as the case may be, owns less than a majority of the voting power of the outstanding capital stock of the Company (it being acknowledged that so long as Zapa▇▇ ▇▇ such Permitted Transferee owns a majority of the voting power of the outstanding capital stock of the Company, there shall be no limit to the number of occasions on which Zapa▇▇ ▇▇ such Permitted Transferee may exercise such rights other than as expressly set forth herein), or (B) in the case of a Holder other than Zapa▇▇ ▇▇ a Permitted Transferee described in clause (A) above, on more than the number of occasions permitted such Holder in accordance with Section 11 hereof.
(b) Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (A) unless the registration statement filed in connection therewith has become effective, (B) if after such registration statement has become effective, it becomes subject to any stop order, or there is issued an injunction or other order or decree of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of the Registrable Securities so registered prior to the completion of the distribution thereof in accordance with the plan of distribution set forth in the registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied by reason of some act, misrepresentation or omission by the Company and are not waived by the purchasers or underwriters; and
(ii) nothing herein shall modify a Holder's obligation to pay Registration Expenses, in accordance with Section 4 hereof, that are incurred in connection with any withdrawn registration requested by such Holder.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the Fair Market Value of the Registrable Securities to be registered in connection with such offering shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering, and the Company shall have the right to designate one underwriter reasonably satisfactory to such Holders as a co-manager of such underwritten offering.
(id) specifying The Company shall have the number right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by any Holder pursuant to Section 2(a) only to the extent the managing underwriter or other independent marketing agent for such offering (if any) determines that, in its opinion, the additional securities proposed to be sold will not materially and adversely affect the offering and sale of the Registrable Securities to be included registered in accordance with the intended method or methods of disposition then contemplated by such Holder. The rights of a Holder to cause the registration of additional Registrable Securities held by such Holder or Holders, (ii) specifying whether the intended method in any registration of disposition thereof is Registrable Securities requested by another Holder pursuant to an Underwritten Offering (as defined below), and (iiiSection 2(a) containing all information about such Holder required to shall be included in such Registration Statement in accordance with applicable law. As soon as practicable after governed by the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) agreement of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this with respect thereto as provided in Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period11(a).
(be) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) file a registration requested statement relating to a registration request by a Holder pursuant to this Section 4.2 is deemed not to have been effected 2 from and after such time as a Demand Registration such Holder first owns Registrable Securities representing (assuming for this purpose the conversion, exchange or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement exercise of all Registrable Securities then owned by 5 such Holder that are convertible into or exercisable or exchangeable for Voting Stock of the distribution by the Holders Company) less than 10% of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 issued and outstanding Voting Stock of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Zap Com Corp), Registration Rights Agreement (Zap Com Corp)
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause such registration statement to become effective (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a "Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that Vail will not be required to register the Vail Equity pursuant to a Demand Notice under this Section 5.1 if at such time (i) the shares of Vail Equity which a registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 5.1 constitute less than 6.0% (or, if less, all of the shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until fortybe unreasonably withheld. In the event there is one or more co-five (45) days after managers, the commencement first such co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of the distribution Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Holders Requesting Shareholder.
(e) In connection with a Demand Registration, both the Shareholder not requesting the Demand Registration (the "Non-Requesting Shareholder") and Vail may elect to include additional shares of Vail Securities in such offering on the Registrable same terms and conditions as the Vail Equity to be sold by the Requesting Shareholder; provided, however, that if the managing underwriter(s) advises the Requesting Shareholder, the Non-Requesting Shareholder and Vail that, in its judgment, the number of shares proposed to be included in such offering exceeds the largest number of Vail Securities covered by which can be sold without having an adverse effect on such registrationoffering, including the price at which such securities can be sold (the "Marketable Number"), then the Company shall continue total number of shares to be obligated included in such offering shall be limited as follows: (i) first, all the shares of Vail Equity that the Requesting Shareholder and the Non-Requesting Shareholder propose to effect a Demand Registration pursuant sell up to this Section 4.2 the Marketable Number, allocated pro rata between the Requesting Shareholder and the Non-Requesting Shareholder on the basis of the Registrable relative number of Vail Securities that the Requesting Shareholder and the Non-Requesting Shareholder have proposed to be included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause and (ii) second, all the shares of Vail Securities that Vail proposes to sell, which does not exceed the proviso difference, if any, between the Marketable Number and that number of shares which the Requesting Shareholder and the Non-Requesting Shareholder have included pursuant to Section 4.2(a)clauses (i) and (ii) above.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc), Shareholder Agreement (Vail Resorts Inc)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date Partnership shall receive a written request (a “Demand Notice”) from the Demand Committee that is 180 days after the Closing Date (as defined in Partnership effect the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act of all or any portion of the Registrable Securities specified in the Demand Notice (a “Demand Registration”) by delivering a written request therefor ), specifying the information set forth under Section 2.5(j), then the Partnership shall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to the Company (i) specifying the number of Registrable Securities to be included restrictions in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowSection 2.2(d), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof the Registrable Securities for which the Demand Committee has requested registration under this Section 2.2, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodregistered.
(b) The offering At any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration, the Demand Committee may revoke such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate request by providing a co-managing underwriter to participate in the Underwritten Offering, subject notice to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through Partnership revoking such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder request. The Partnership shall be required to make liable for and pay all Registration Expenses in connection with any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) IfIf a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Partnership and the Demand Committee that, in connection with an Underwritten Offeringits view, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed units of Registrable Securities requested to be included in such registration exceeds the Underwriters’ largest number of units that can be sold without having a material adverse effect on such offering, including the price at which such units can be sold (the “Maximum NumberOffering Size”), then the Partnership shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) the Company shall so advise first, all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held registered in the Demand Registration by the Holders Demand Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, in such proportions as shall be included in a determined by the Demand Registration without Committee);
(ii) second, any securities proposed to be registered by the prior written consent Partnership or any securities proposed to be registered for the account of any other persons, with such priorities among them as the holders of a majority in interest of the Registrable SecuritiesPartnership shall determine.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Upon notice to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten OfferingDemand Committee, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) Partnership may postpone effecting a registration requested pursuant to this Section 4.2 is deemed 2.2 on up to three occasions during any period of six consecutive months for a reasonable time specified in the notice but not to have exceeding 120 days in the aggregate (which period may not be extended or renewed), if (i) the General Partner shall determine in good faith that effecting the registration would materially and adversely affect an offering of securities of the Partnership the preparation of which had then been effected as a Demand Registration commenced or (ii) the registration requested pursuant to this Section 4.2 does Partnership is in possession of material non-public information the disclosure of which during the period specified in such notice the General Partner believes in good faith would not remain continuously effective until forty-five (45) days after be in the commencement best interests of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Partnership.
Appears in 2 contracts
Sources: Registration Rights Agreement (Blackstone Group L.P.), Registration Rights Agreement (Blackstone Group L.P.)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after following the Closing Date (as defined in the Merger Agreement)and expiration or waiver of any lockup applicable to such Holders party hereto, the Initiating Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale may request in writing that all or part of their respective the Registrable Securities held by them shall be registered under the Securities Act (a “Demand Registration”). Within ten (10) by delivering a days after receipt of any such request, the Company shall give written notice of such request therefor to the Company (i) specifying the number of Registrable Securities to be included other Holders and shall include in such registration all Registrable Securities held by all such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant Holders who wish to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included participate in such Registration Statement in accordance demand registration and provide the Company with applicable law. As soon as practicable written requests for inclusion therein within seven (7) days after the receipt of the Company’s notice; provided that no Holder who is subject to a lockup with respect to such demandHolder’s Registrable Securities shall have any right to have such Registrable Securities participate in such registration or offering except to the extent such lockup has expired or been waived. Thereupon, the Company shall (x) promptly notify effect the registration of all Holders from whom the request Registrable Securities as to which it has received requests for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registeras soon as practicable; provided, however, provided that (i) the Holders Company shall not make a request for a Demand Registration be required to effect any registration under this Section 4.2(a2.3 (x) for within a period of ninety (90) days following the effective date of a previous registration and (y) with respect to Registrable Securities having an anticipated aggregate with a total offering price of less than $5,000,000not reasonably expected to exceed, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreementaggregate, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case$50 million, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) provision shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder apply if a shelf registration on Form F-3 has been filed pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement Section 2.5 and completes is effective and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementavailable for use. The Company shall not be obligated required to effect or participate (a) more than (A) one (1) registration under this Section 2.3 requested by the ION Holders and (B) two (2) Underwritten Offerings registrations under this Section 2.3 requested by the Major Shareholder Initiating Holders. If the Company shall furnish to the Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the board of directors (the “Board”) it would be seriously detrimental to the Company or its shareholders for a registration under this Section 2.3 to be effected at such time, the Company shall have the right to defer such registration for a period of not more than one hundred and twenty (120) days after receipt of the request of the Initiating Holders under this Section 2.3, provided that the Company shall not utilize this right more than once in any twelve (12) month period, . The Initiating Holders may elect to withdraw from any offering pursuant to this Section 2.3 by giving written notice to the Company and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any of their request to withdraw prior underwritten to the effectiveness of the Registration Statement filed with the SEC with respect to such Demand Registration. If the Initiating Holders withdraw from a proposed offering conducted by relating to a Demand Registration then either the Initiating Holders shall reimburse the Company on its own behalf for the costs associated with the withdrawn Demand Registration (in which case such registration shall not count as a Demand Registration provided for in this Section 2.3) or on behalf such withdrawn registration shall count as a Demand Registration provided for in this Section 2.3. Notwithstanding any other provision of the Holders.
(c) Ifthis Section 2.3, in connection with an Underwritten Offering, if the managing underwriter(s) advise underwriter advises the Company Holders in writing that in its marketing factors require a limitation on the dollar amount or their reasonable opinion the number of securities shares to be underwritten, then the amount of Registrable Securities proposed to be registered shall be reduced pro rata to the respective number of Registrable Securities held by the Holders; provided that in any event all Registrable Securities held by the Initiating Holders, and any other Holders that elect to participate in any such registration must be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof based on the basis total amount of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the each such Initiating Holder or other Holder, as applicable) prior written consent to any other shares of the holders of a majority Company, including shares held by persons other than Holders. The Company shall not register securities for sale for its own account in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not 2.3 unless permitted to have been effected as a Demand Registration or (ii) do so by the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement written consent of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Initiating Holders.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Taboola.com Ltd.), Investors’ Rights Agreement (Taboola.com Ltd.)
Demand Registration. (ai) Subject to the provisions hereof, at At any time on or after the date that is 180 days six months after the Closing Date date hereof , if one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding shall make a written request to the Company (as defined in the Merger Agreement"Demanding Holders"), the Holders Company shall cause there to be filed with the Commission a registration statement meeting the requirements of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “"Demand Registration”"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) by delivering a written all or such number of such Demanding Holder's Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request therefor may be made pursuant to this Section 2.1 if within nine (9) months prior to the Company (i) specifying date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be included in such registration by such Holder or Holdersregistered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) specifying whether The Company shall be entitled to postpone for up to ninety (90) days the intended method filing of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder any Demand Registration statement otherwise required to be included prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such Registration Statement in accordance with applicable law. As soon as practicable after registration and the receipt Transfer of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerdetermination; provided, however, that (ithe Company shall not have postponed pursuant to this Section 2.1(ii) the Holders filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the twelve (12) month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall not have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all other Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder's Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the "Initiating Substantial Holder"), shall be entitled to have all or any number of such Initiating Substantial Holder's Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a "Shelf Registration"). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company's best efforts to have the registration declared effective under this Section 4.2(a) for Registrable the Securities having an anticipated aggregate offering price of less than $5,000,000Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Holders will not be entitled Company's best efforts to require keep the Company relevant registration statement Continuously Effective (x) if a Demand Registration, for up to effect more than ninety (90) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three (3) Demand Registrations years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate under this Agreement, and (iii) the number of days of such suspension or postponement.
2.4. The Company will not shall be obligated to effect no more than four Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one (1) Demand Registration in any six (6) month period.
(b) The offering Shelf Registration. For purposes of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such casepreceding sentence, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval registration shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as (i) unless a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement statement with respect thereto; provided, however, that if, after it thereto has become effective, (iii) if after such Registration Statement registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if any court prevents the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or otherwise limits waived, other than by reason of a failure on the sale part of the Registrable Securities Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the registration, and in each case less than earlier of (x) the date as of which all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders included therein shall have been disposed of pursuant to the Registration Statement, or and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of ninety (90) days, and (ii) ifif a Shelf Registration, in upon the case effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an Underwritten Offeringorder, the Company fails to provide Full Cooperation, then such is thereafter entered or initiated.
2.5. A registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not 2 shall be on such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to have been effected the Majority Selling Holders, or by the Initiating Substantial Holder, as a Demand Registration or the case may be, and (ii) permit the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders disposition of the Registrable Securities covered by such registration, then in accordance with the Company shall continue to be obligated to effect a Demand Registration intended method or methods of disposition specified in the request pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this 2.1(i) or Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).2.2
Appears in 2 contracts
Sources: Registration Rights Agreement (Sonera Corp), Registration Rights Agreement (Voicestream Wireless Holding Corp)
Demand Registration. (a) Subject If the Company shall receive a written request by the LLC or its Permitted Transferees or DLJIP (any such requesting Person, a "Selling Stockholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Stockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") at least 30 days prior to the provisions anticipated filing date of the registration statement relating to such Demand Registration to the Other Stockholders and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Selling Stockholders, then held by the Selling Stockholders; and
(ii) subject to the restrictions set forth in Section 5.01(e), all other Registrable Securities of the same type as that to which the request by the Selling Stockholders relates which any Other Stockholder entitled to request the Company to effect an Incidental Registration (as such term is defined in Section 5.02) pursuant to Section 5.02 (all such Stockholders, together with the Selling Stockholders, the "Holders") has requested the Company to register by written request received by the Company within 15 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 Securities so to be registered; provided that, subject to Section 5.01(d) hereof, at any time on the Company shall not be obligated to effect (A) more than six Demand Registrations for the LLC and its Permitted Transferees or after (B) one Demand Registration for DLJIP (which Demand Registration right may not be exercised prior to the earlier of (1) five years from the Closing Date and (2) the date that is 180 days after the Closing Date (as defined in the Merger Agreementan Initial Public Offering), the Holders of a majority of Registrable Securities shall have the right to require ; and provided further that the Company shall not be obligated to file effect a Demand Registration Statement registering for unless the aggregate proceeds expected to be received from the sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities Common Stock to be included in such registration by Demand Registration, in the reasonable opinion of DLJ Merchant Banking II, Inc. exercised in good faith, equals or exceeds (Y) $30,000,000 if such Holder Demand Registration would constitute the Initial Public Offering, or Holders, (iiZ) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing $10,000,000 in all information about such Holder required to be included in such Registration Statement in accordance with applicable lawother cases. As soon as practicable after the receipt of such demand, In no event will the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one (1) Demand Registration in within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 15-day period referred to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i5.01(a)(ii) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of will notify all the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein therein. The Selling Stockholders requesting a registration under this Section may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by each providing a written notice to the Company revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without unless the prior written consent participating Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration, or unless such revocation arose out of the holders of a majority in interest fault of the Registrable SecuritiesCompany, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale and (y) less than 75% of the Registrable Securities pursuant to the registration, and included in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will statement has been sold thereunder, such registration statement shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as considered a Demand Registration or (ii) if the registration requested pursuant to this Maximum Offering Size (as defined below) is reduced in accordance with Section 4.2 does not remain continuously effective until forty-five (455.01(e) days after the commencement of the distribution by the Holders or 5.01(f) such that less than 66 2/3% of the Registrable Securities covered by such registration, then of the Company shall continue Selling Stockholders sought to be obligated to effect included in such registration are included.
(e) If a Demand Registration pursuant involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Stockholders that, in its view, (i) the number of Registrable Securities requested to this Section 4.2 be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the Registrable Securities owned by the Holders, in any such case, exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first: (1) in the case of a Demand by the LLC and its Permitted Transferees, all Securities requested to be registered by the Selling Stockholder and by all of its Permitted Transferees and CRL, DLJIP, BB, Carlyle, and the TCW Entities (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Persons on the basis of the relative number of shares of Registrable Securities requested to be registered), or (2) in the case of a Demand by DLJIP, all Securities requested to be registered by the Selling Stockholder and by all of its Permitted Transferees and BB, Carlyle, and the TCW Entities (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Persons on the basis of the relative number of shares of Registrable Securities requested to be registered);
(B) second: (1) in the case of a Demand by the LLC and its Permitted Transferees, all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of shares of Registrable Securities requested to be included in such registration. In circumstances not including the events described ), or (2) in the immediately two preceding sentences case of this Section 4.2(d)a Demand by DLJIP, each Holder all Registrable Securities requested to be included in such registration by the LLC and its Permitted Transferees and by CRL (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of shares of Registrable Securities shall requested to be permitted voluntarily included in such registration);
(C) third: (1) in the case of a Demand by the LLC and its Permitted Transferees, any securities proposed to withdraw be registered by the Company, or (2) in the case of a Demand by DLJIP, all or any part of its Registrable Securities from requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of shares of Registrable Securities requested to be included in such registration); and
(D) fourth: in the case of a Demand by DLJIP, any securities proposed to be registered by the Company.
(f) If the Company files a shelf registration statement with respect to the High Yield Warrants, the Company shall notify the holders of the Warrants at least 20 days prior to such filing. The holders of the Warrants shall have the right (which shall not be deemed to be a use of a Demand Registration at any time prior right), by notice to the commencement Company, to include the Warrants in such shelf registration statement. Notwithstanding anything in this Agreement to the contrary, this Agreement shall not be construed to confer on any Stockholder (other than holders of marketing of Warrants in their capacity as such, together with any Persons entitled to indemnification hereunder in connection therewith) any rights in connection with such Demand Registration, provided that such shelf registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)statement.
Appears in 2 contracts
Sources: Investors' Agreement (Charles River Laboratories Holdings Inc), Investors' Agreement (Charles River Laboratories Inc)
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause such registration statement to become effective (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a "Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that Vail will not be required to register the Vail Equity pursuant to a Demand Notice under this Section 5.1 if at such time (i) the shares of Vail Equity which a registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 5.1 constitute less than 6.0% (or, if less, all of the shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationunreasonably withheld. In circumstances not including the events described in event there is one or more co-managers, the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities first such co-manager shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationselected by Vail, provided that such registration nonetheless co-manager shall count as a Demand Registration for purposes of clause (ii) be subject to the approval of the proviso to Section 4.2(a)Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Requesting Shareholder.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc /Mo), Shareholder Agreement (Ralcorp Holdings Inc /Mo)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after expiration of the Closing Date (as defined transfer restrictions contained in the Merger AgreementSection 2.1(a), so long as the Holders Shareholders, collectively, Own at least 5.0% of the Voting Power of the Company, any Shareholder (a majority "Requesting Shareholder") shall be entitled to make a written request of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering "Demand") for sale all or part of their respective Registrable Securities registration under the Securities Act of an amount of Registrable Securities that, when taken together with the amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting Shareholder's Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying based on the number of Registrable Securities to be included in outstanding on the date such registration by such Holder or Holders, Demand is made) (iia "Demand Registration") specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, thereupon the Company shall (x) promptly notify all Holders from whom will, subject to the request for registration has not been received and (y) terms of this Agreement, use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities that the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 5.1(b); and
(iii) all Common Shares that the Company will not may elect to register in connection with any offering of Registrable Securities pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Shares, if any, to be obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Subject to Section 5.1(g), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held by with respect to which the Holders Company has received a written request for inclusion therein within ten (10) days after the initial Demand.
(c) The Shareholders, collectively, shall be included in a entitled to an aggregate of six (6) Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistrations.
(d) A registration will Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration (i) unless the Registration Statement relating a registration statement with respect thereto has been declared become effective by the SEC, and has remained effective for a period of at least 75% of the sixty (60) days (or such shorter period in which all Registrable Securities requested to be included in the registration by the Holders are included in such registrationDemand Registration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that (ii) if, after it has become effective, (i) such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of to any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, (iii) if the conditions to closing specified in the purchase agreement or if underwriting agreement entered into in connection with such Demand Registration are not satisfied as a consequence of any court prevents act or otherwise limits omission by the sale Company or (iv) the number of Registrable Securities requested for inclusion is materially reduced pursuant to Section 5.1(g).
(e) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company.
(f) The Company shall be entitled to postpone (upon written notice to all Shareholders) for up to an aggregate of ninety (90) days during any period of twelve (12) consecutive months the filing or the effectiveness of a registration statement for any Demand Registration if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities pursuant held by the Requesting Shareholder(s) shall have the right to the registration, and withdraw such Demand in each case less accordance with Section 5.3.
(g) The Company shall not include any securities other than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) Registration, except with the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement written consent of the distribution by the Holders of the Registrable Securities covered by Shareholders participating in such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 that hold a majority of the Registrable Securities included in such registrationDemand Registration. In circumstances If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Company) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the events described Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter can be sold without such adverse effect as follows and in the immediately two preceding sentences following order of this Section 4.2(d)priority: (i) first, each Holder up to the number of Registrable Securities shall requested to be permitted voluntarily included in such Demand Registration by the Shareholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Shareholders requesting such Demand Registration on the basis of the number of such securities requested to withdraw be included by such Shareholders and such Shareholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any part of its Registrable Securities from such other method determined by the Company.
(h) Any time that a Demand Registration at any time prior involves an Underwritten Offering, the Company shall select the investment banker or investment bankers and managers that will serve as lead and co-managing underwriters with respect to the commencement of marketing offering of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Registrable Securities.
Appears in 2 contracts
Sources: Shareholder Agreement (Aircastle LTD), Shareholder Agreement (Aircastle LTD)
Demand Registration. (a) Subject to The Company agrees that at the provisions hereofCompany's sole expense, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Company shall, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying no later than thirty (30) days following a written demand from the number Warrant Holder or the holder of Registrable Securities Warrant Shares for registration, file on its behalf and on behalf of the Warrant Holder or the holder of Warrant Shares with respect to be included the Warrant Shares specified in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such demand a Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act Act; and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Holders will not be entitled to require the Commission as soon thereafter as reasonably practicable. The Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not shall be obligated to effect more than prepare, file and cause to become effective only one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities Statement pursuant to such Demand this Section 11(d) (which Registration may Statement shall be in the form of an underwritten public offering (an “Underwritten Offering”addition to any filed under Section 11(c)). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be The registration required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted effected by the Company on its own behalf pursuant to Section 11(c) or on behalf of the Holders.
(cthis Section 11(d) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as even though a Demand Registration unless the Registration Statement relating with respect thereto has been declared become effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that (1) if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction injunction, or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt, or if for any court prevents or otherwise limits the sale of the Registrable Securities pursuant reason not attributable to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Warrant Holder or Holders pursuant with respect to the such Registration Statement, and has not thereafter become effective or (ii2) if, if the conditions to closing specified in the case of an Underwritten Offeringunderwriting agreement, the Company fails to provide Full Cooperationif any, then entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied or waived, other than by reason of clause (ii) a failure on the part of the proviso Warrant Holder with respect to such Registration Statement; provided, that this the Warrant Holder or the holder of Warrant Shares may not be able to make a demand for registration under this Section 5(d) (A) unless and until a registration statement filed pursuant to Section 4.2(a). If 5(a) shall have expired or become ineffective or (iB) a registration requested to the extent that sales may be reasonably made pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) Rule 144 under the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after Securities Act b the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Warrant Holder.
Appears in 2 contracts
Sources: License Agreement (Cytogen Corp), License Agreement (Cytogen Corp)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company shall be requested in writing by Holder to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor of any of the Registration Stock, the Company, subject to the Company (i) specifying the number of Registrable Securities to be included limitations set forth in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowsubsection 3(b), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As shall effect as soon as practicable after the receipt of such demandrequest, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been all Registration Stock which Holder so requested requests to register; provided, however, that be registered.
(i) If Holder intends to distribute the Holders Registration Stock covered by its request by means of an underwriting, it shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require so advise the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering as a part of the Registrable Securities its request made pursuant to such Demand Registration may this subsection 3(a). The managing underwriter will be in selected by Holder and shall be reasonably acceptable to the form of an underwritten public offering (an “Underwritten Offering”)Company. In such caseevent, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company Holder shall (together with the Holders proposing to distribute their securities through such underwritingCompany as provided in subsection 4(e)) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(sunderwriter or underwriters selected for such underwriting.
(ii) proposing to distribute their securities through such Underwritten OfferingNotwithstanding the foregoing, which underwriting agreement shall have indemnification provisions the Company may include in substantially a registration requested under this subsection 3(a) any additional authorized shares of the form as set forth in Section 4.9 of this AgreementCommon Stock, whether or not issued, for sale by the Company or for sale by others; provided, however, that such shares shall not be included to the extent that the managing underwriter chosen in accordance with subsection (i) above concludes in good faith that the representations and warranties byinclusion of such shares will interfere with the successful marketing of the shares of Registration Stock to be included therein.
(iii) Notwithstanding the foregoing, if the Company shall furnish to Holder a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be detrimental for such registration statement to be filed or would require the Company to make public disclosure of information the premature disclosure of which would have an adverse effect on the Company, and it is therefore beneficial to the other agreements on Company to defer the part offiling of such registration statement (or the intended sale of Registration Stock pursuant to a then effective registration statement), the Company shall have the right to and for the benefit of the underwriter(s) shall also be made defer taking action with respect to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties tosuch filing, or agreements withrequire Holder to refrain from selling Registration Stock, any underwriter in as the case may be, for a registration other period of not more than customary representations, warranties and agreements and one hundred twenty (iii120) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and days.
(b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect effect, or participate to take any action to effect, any registration pursuant to this Section 3:
(ai) more than two (2) Underwritten Offerings After the Company has effected one registration pursuant to this Section 3 in any the previous twelve (12) month period, months and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and has been declared or ordered effective; or
(ii) During the Company will be obligated and required period beginning on a date thirty (30) days prior to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis Company's good faith estimate of the number date of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationfiling of, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, ending on a date one hundred eighty (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45180) days after the commencement effective date of, a registration of Common Stock or other securities of the distribution by Company under the Holders Act in connection with a public offering of such securities (other than a registration relating solely to the sale of securities to participants in a stock option or other employee benefits plan of the Registrable Securities covered by such registration, then Company); provided that the Company shall continue is actively employing in good faith reasonable efforts to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that cause such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso statement to Section 4.2(a)become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Securicor Telesciences Inc), Registration Rights Agreement (Axiom Inc)
Demand Registration. (a) Subject to the provisions hereofIf, on or at any time on after the Effectiveness Date there is no currently effective Shelf Registration Statement, then at any time thereafter, upon written notice (a “Demand”) from a Holder or Holders holding at least 50% of the Registrable Securities (collectively, the “Demand Holder”) requesting that the Company effect the registration under the 1933 Act of any or all of the Registrable Securities held by the Demand Holder, which notice shall specify the amount and intended method or methods of disposition of such Registrable Securities, including pursuant to a shelf registration statement utilizing Rule 415 (a “Shelf Registration”), the Company shall, within five days after receiving the Demand, give written notice (the “Request Notice”) of such registration request to all other Holders, except if all the Registrable Securities are held by a single Holder, no Request Notice shall be required, and thereupon will, subject to the limitations set forth in Section 2.02(c), as promptly as possible (and in any event no later than 30 days after the date that is 180 days after of the Closing Date (as defined in the Merger AgreementDemand), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be declared effective under the Securities 1933 Act, a Registration Statement to effect the registration under the 1933 Act and any other governmental requirements or regulationsof (i) of the such Registrable Securities that which the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request for a Demand Registration Holder under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, the Demand and (ii) the Holders will not be entitled to require Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by written request to the Company will not by the Holders within ten days after the giving of the Request Notice (which request shall specify the amount and intended method or methods of disposition of such Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended method(s) thereof as aforesaid) of the Registrable Securities and such other securities so to be obligated to effect more than one (1) Demand Registration in any six (6) month periodregistered.
(b) The offering of the Registrable Securities A registration requested pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in this Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration 2.02 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto unless: (i) it has been declared effective by the SECSEC or has otherwise become effective under the 1933 Act and remains effective for not less than 180 days, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationor, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter or underwriters is required by law for the related offer, delivery of a Prospectus in connection with the sale or distribution of Registrable Securities thereunder is by an underwriter or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, dealer; or (ii) if, in it has been filed with the case of an Underwritten Offering, SEC but abandoned or withdrawn at the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) request of the proviso Demand Holder prior to Section 4.2(a). If effectiveness, other than an abandonment or withdrawal requested because of: (iA) the stock price of the Common Stock falling 15% or more since the delivery of a request for registration requested pursuant to this Section 4.2 is deemed not to have been effected 2.02, (B) a material adverse change in the Company’s and the Subsidiaries’ financial condition, business, assets, results of operations financial condition, taken as a whole, or (D) the discovery of materially adverse, non-public information concerning the Company and the Subsidiaries, taken as a whole.
(c) Notwithstanding anything in this Agreement to the contrary:
(i) if the filing of a Registration Statement in respect of a Demand would require the Company to make an Adverse Disclosure, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing of such Registration Statement for the shortest period of time determined in good faith by the Company to be necessary for such purpose; provided that the Company shall not be permitted to do so (A) more than two times during any twenty-four month period, (B) for a period not exceeding 40 days on any one occasion or (C) for a period exceeding 60 days in any 12 month period. The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 2.02(c)(i);
(ii) the registration requested Company shall not be obligated to file a Registration Statement in respect of a Demand (A) on more than two occasions or (B) within a period of one (1) month after the effective date of any other Registration Statement of the Company demanded pursuant to this Section 4.2 does not remain continuously effective until forty-five 2.02;
(45iii) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily may elect to withdraw all or any part of its Registrable Securities from a Demand Registration registration pursuant to this Section 2.02 at any time time, and if all such Holders do so, the Company shall cease its efforts to secure registration; and
(iv) all Demand registrations pursuant to this Section 2.02 shall be on Form S−3, except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form, reasonably acceptable to the Holders of a majority of the Registrable Securities, and as shall permit the disposition of the Registrable Securities in accordance with the intended method of distribution or methods of distribution specified in the applicable Demand Holder’s requests for such registration.
(d) Nothing in this Agreement shall limit the right of any Holder to request the registration of the Registrable Securities issuable upon exercise of the Warrants by such Holder (subject to such exercise occurring prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) completion of the proviso sale of the underlying Registrable Securities prior to Section 4.2(asuch registration), notwithstanding the fact that at the time of the request such Holder Warrants are not Registrable Securities.
Appears in 2 contracts
Sources: Investor Rights Agreement (Hoku Scientific Inc), Investor Rights Agreement (Tianwei New Energy Holdings Co., LTD)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after following the date that is 180 days after the Closing Date (as defined in the Merger Agreement)IPO, the Holders of Company shall receive a majority of Registrable Securities shall have written request (a “Demand Notice”) from the right to require Equity Committee that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of the Registrable Securities specified in the Demand Notice (a “Demand Registration”) by delivering a written request therefor to the Company (i) ), specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 2.2(d), the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof the Registrable Securities for which the Equity Committee has requested registration under this Section 2.2, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that so to be registered. Notwithstanding the Company has been so requested to register; providedforegoing, however, that (i) the Holders Equity Committee shall not make a request for a be entitled to ten Demand Registration under Registrations pursuant to this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002.2, (ii) the Holders will not Equity Committee shall be entitled to require the Company to effect no more than three (3) Demand Registrations in the aggregate under this Agreementone demand registration during any six-month period, and (iii) the Company will shall not be obligated to effect more than one (1) make a Demand Registration with respect to the Equity Committee in any six the event that a Fifth Anniversary Registration or Piggyback Registration (6as defined below) month periodhad been available to the Equity Committee within the 180 days preceding the date of the Demand Notice.
(b) The offering At any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration, the Equity Committee may revoke such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate request by providing a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished notice to the Company by or on behalf of revoking such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementrequest. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings liable for and pay all Registration Expenses in connection with any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) IfIf a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Equity Committee that, in connection with an Underwritten Offeringits view, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed shares of Registrable Securities requested to be included in such registration exceeds the Underwriters’ 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 NumberOffering Size”), then the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered in the Demand Registration by the Equity Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Covered Persons whose Registrable Securities are included in the Demand Registration on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each);
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other persons, with such priorities among them as the Company shall determine.
(d) Upon notice to the Demand Requesting Covered Person, the Company may postpone effecting a registration pursuant to this Section 2.2 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 120 days (which period may not be extended or renewed), if (i) the Company shall so advise all Holders determine in good faith that effecting the registration would materially and adversely affect an offering of Registrable Securities to be included in securities of such Underwritten Offering and company the preparation of which had then been commenced or (ii) the Company will be obligated and required to include is in possession of material non-public information the disclosure of which during the period specified in such Underwritten Offering only that number of Registrable Securities requested by notice the Holders thereof to Company believes in good faith would not be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis best interests of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 2 contracts
Sources: Registration Rights Agreement (Evercore Partners Inc.), Registration Rights Agreement (Evercore Partners Inc.)
Demand Registration. (a) Subject to the provisions hereofArticle III, at any time on or after the date that is 180 days six (6) month anniversary of the Company’s initial Public Offering after the Closing Date Effective Date, (as defined in i) any Holder of at least 10% of the Merger Agreement), the Holders of a majority of Registrable Securities shall have then outstanding or (ii) the right GSAM Investors or their Affiliates, so long as they Beneficially Own at least one-third of the Registrable Securities Beneficially Owned by the GSAM Investors on the Effective Date, may request in writing (specifying that such request is being made pursuant to require this Section 2.01(a) and the intended method or methods of disposition thereof) that the Company to file a Registration Statement registering for sale registration statement (or corresponding successor document) under the Securities Act, of all or part of its or their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to ). Thereafter, the Company (i) specifying the number shall promptly notify all other Holders in writing of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandrequest, and each such Holder in lieu of exercising its rights under Section 2.02 may elect (by written notice sent to the Company shall within ten (x10) promptly notify all Holders Business Days from whom the request for registration has not been received and (ydate of the aforementioned notice) to have Registrable Securities included in such Demand Registration thereof pursuant to this Section 2.01(a). Thereupon the Company shall, as expeditiously as is reasonably possible, use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the all shares of Registrable Securities that which the Company has been so requested to registerregister by such Holders for sale, all 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 (i) the Holders Company shall not make be required to effect a request for registration of Registrable Securities on a Demand Registration under Form S-1 or other “long-form” registration pursuant to this Section 4.2(a2.01(a) for unless the Registrable Securities having requested by all Holders to be registered have an anticipated aggregate public offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in before any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from of not less than Fifteen Million Dollars ($15,000,000); and further provided, however, the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) more than two (2) Underwritten Offerings in registrations on Form S-1 or other “long form” registration of any twelve Registrable Securities pursuant to this Section 2.01(a). There shall be no aggregate limit on short-form registrations on Form S-3 or any successor form so long as the anticipated aggregate public offering price (12before any underwriting discounts and commissions) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included registered on each such short-form registration is not less than Three Million Dollars ($3,000,000). Except as otherwise provided in Section 2.04, all expenses of such Underwritten Offering and (ii) the Company will registration shall be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested borne by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany.
(db) A registration will not be deemed to have been effected count as a Demand Registration until the applicable registration statement has become effective (unless the requesting Holder withdraws all of its Registrable Securities 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 Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included requesting Holder pays all registration expenses in the registration by the Holders are included in connection with such withdrawn registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is either (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement action of the SEC Commission or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale (other than because of the Registrable Securities pursuant to the registration, and in each case less than all a violation of the Registrable Securities covered applicable law by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, a Holder) or (iiy) ifwithdrawn because of any development affecting the Company, in the either case of an Underwritten Offering, the Company fails to provide Full Cooperationbefore being in effect for more than 90 days, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed and will not to have been effected count as a Demand Registration or unless at least ninety percent (ii90%) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included thereon have been sold or otherwise disposed of.
(c) If the managing underwriter of a Demand Registration shall advise the Company in such registration. In circumstances not including writing that, in its opinion, the events described inclusion of all of the Registrable Securities requested to be included in the immediately two preceding sentences Demand Registration would materially and adversely affect the distribution of this Section 4.2(d)a smaller amount of such Registrable Securities, each Holder then all selling Holders shall reduce the amount of Registrable Securities each intended to distribute through such offering on a pro-rata basis such that the Registrable Securities to be included in the Demand Registration shall be permitted voluntarily reduced to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)smaller amount.
Appears in 1 contract
Sources: Restructuring Agreement (Ener1 Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on Any one or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), more of the Holders of a majority of Registrable Securities (the “Initiating Holders”) shall have the right to require request the Company to file a effect one registration on Form S-3 (the “Demand Registration Statement registering for sale Statement”) with respect to all or a part of their respective Registrable Securities under the Securities Act Shares (a “Demand Registration”) by delivering a written such request therefor to the Company (i) specifying shall be in writing and shall state the number of Registrable Securities Shares to be disposed of and the intended method of disposition). Notwithstanding the foregoing, the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 4:
(a) so long as the Shelf Registration Statement is effective (subject to Sections 5(c) and (d) herein); or
(b) if the Shares requested to be included in such registration by such Holder or Holders, (ii) specifying whether have an aggregate fair market value of less than $50,000,000. Subject to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandforegoing, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) will use its commercially reasonable best efforts to effect promptly the registration of Shares on Form S-3 to the extent requested by the Initiating Holders thereof for purposes of disposition and, subject to Sections 5(c) and (d) hereof, to keep such registration (includingDemand Registration Statement effective for a period not in excess of 60 days or until the Initiating Holders have completed the distribution described in the Demand Registration Statement, without limitationwhichever first occurs and if the Demand Registration Statement is not effective for this period, appropriate qualification then it shall not count as a Demand Registration Statement under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued this Agreement. The Demand Registration Statement will contain a plan of distribution as designated by the Holders. The Demand Registration Statement shall also cover, to the extent allowable under the Securities Act and any other governmental requirements the rules promulgated thereunder (including Rule 416) such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or regulations) similar transactions with respect to the Shares. If the Initiating Holder (or a majority in interest of the Registrable Securities that Initiating Holders) so elect, the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities Shares pursuant to such Demand Registration may Statement shall be in the form of a firm commitment underwritten offering, in which case all persons or entities participating in such registration may be required to sell their Shares which are included in such registration to the underwriters at the same price and on the same terms of underwriting as is applicable to the Initiating Holder or Holders. If the Demand Registration Statement involves an underwritten public offering (an “Underwritten Offering”). In offering, the sole or managing underwriters and any additional investment bankers and managers to be used in connection with such case, (i) registration shall be selected by the Company may designate the managing underwriter(s) Initiating Holder or a majority in interest of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten OfferingInitiating Holders, subject to the approval of the Company, which approval shall not be unreasonably withheld withheld, delayed or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersconditioned.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereofSection 1(b) and Section 3 below, at any time on or after the date that is 180 days after hereof if at the Closing Date time Investor (as defined or the successors and permitted assigns of Investor, who for purposes of this Exhibit B shall be deemed to be included within the term "Investor") shall hold of record collectively at least 500,000 shares of unregistered NRC Stock, Investor (or, if there are one or more permitted assignees of Investor, persons holding a majority, in the Merger Agreement)aggregate, of the Holders of a majority of Registrable Securities Purchase Shares and NRC Shares acquired by Investor under the April 15 Agreements) shall have the right to require cause NRC to effect a registration under the Company to file a Registration Statement registering 1933 Act of such Purchase Shares and such NRC Shares for sale an underwritten public offering of all or part of their respective such Purchase Shares and such NRC Shares (the Purchase Shares and such NRC Shares being (collectively referred to as "Registrable Securities under the Securities Act (a “Demand Registration”Securities") by delivering written notice of its demand to cause NRC to effect such a written request therefor registration to the Company (i) NRC, specifying the number of shares of Registrable Securities to be included in such registration by such Holder and the intended method of distribution thereof (the "Demand Registration Request"). NRC shall, as expeditiously as possible under the circumstances, use its best efforts to effect the registration under the 1933 Act and to effect any notification, registration or Holders, (ii) specifying whether qualification under any applicable state securities law of the Registrable Securities which NRC has been so requested to register in the Demand Registration Request for disposition in accordance with the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included stated in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Request (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will except that NRC shall not be obligated to effect more than one (1list any of its securities on any additional stock exchange or register or comply with any laws, rules or regulations of any foreign government or agency) and all to the extent necessary to permit the sale or other disposition by Investor of Registrable Securities to be so registered in accordance with the method of distribution set forth in the Demand Registration in any six (6) month periodRequest.
(b) The offering demand registration rights granted in Section 1(a) above shall only be exercised concurrently with, and not in addition to, the exercise by Investor of the Registrable Securities demand registration rights granted to Investor by NRC pursuant to such Demand Registration may be the April 15 Agreements. Notwithstanding anything to the contrary contained in this Exhibit B or in the form of an underwritten public offering April 15 Agreements (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(sincluding Section 1(b)(i) of Exhibit C to each of the Underwritten OfferingApril 15 Agreements), provided that such Holders may designate a co-managing underwriter Investor shall have the right to participate exercise its demand registration rights under this Section 1 (and under Section 1 of each of the April 15 Agreements) on two occasions in the Underwritten Offeringaggregate, subject to the approval of the Companyfollowing limitations: (i) Investor must wait at least six (6) months between exercising its demand registration rights, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form each Demand Registration Request by Investor must be for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit at least 25% of the underwriter(s) shall also be made to and for the benefit shares of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished Common Stock then owned by Investor which were originally purchased pursuant to the Company by April 15 Agreements or on behalf of such Holder expressly for inclusion therein and (b) shall not this Agreement in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersaggregate.
(c) IfSubject to Section 3 below, NRC may elect to include in connection with an Underwritten Offeringany registration statement and offering made pursuant to this Section 1 authorized unissued NRC Shares or NRC Shares held by NRC as treasury shares; provided, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed such NRC Shares shall be permitted to be included in such registration exceeds only to the Underwriters’ Maximum Number, then (i) extent that it is pursuant to and subject to the Company shall so advise all Holders terms of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested underwriting agreement or arrangements entered into by the Holders thereof to be included in such Investor exercising the demand registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations rights granted under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)1.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Mil Investments S A)
Demand Registration. (a) Subject to the provisions hereofSection 2.2, at any time on or beginning six months after the effective date that is 180 days after of the Closing Date Company's initial public offering of common shares, any one Specified Shareholder (as defined a "Demanding Shareholder"), but only, in the Merger Agreementcase of Securitas Capital Fund, with respect to one Registered Public Offering as provided in Section 2.1(b), the Holders of a majority of Registrable Securities shall have the right to require the Company to file use its reasonable best efforts to fulfill such requirements as may be necessary to permit a Registration Statement registering for sale all or part Registered Public Offering (on a firm-commitment, underwritten basis) of their respective Registrable Securities under for the Securities Act (a “Demand Registration”account(s) of Specified Shareholders, by delivering a written request therefor notice of such demand to the Company (i) specifying the number of Registrable Securities that are held of record, and are proposed to be included sold in such registration offering, by the Demanding Shareholder (a "Demand Request"). If more than one Demand Request is submitted to the Company before the Company delivers a Notice of Demand Request in respect thereof pursuant to, and as defined in, Section 2.1(c), then all such Holder or HoldersDemand Requests and their Demanding Shareholders shall be treated collectively, as a single Demand Request and a single Demanding Shareholder, respectively, provided that, if a Demand Request is permitted to be withdrawn under Section 2.2(a), (iib) specifying or (c), and if such request involves individual Demand Requests that have been submitted by more than one Demanding Shareholder and are being treated collectively as a single Demand Request under this sentence, then each such Demanding Shareholder that submitted such an individual request shall be entitled to withdraw its own individual request, and its determination whether the intended method of disposition thereof is pursuant or not to an Underwritten Offering withdraw shall apply solely with respect to its own individual request, provided, further, that any such individual request or requests that are not withdrawn need not be withdrawn and shall continue to be counted as a single Demand Request as long as, collectively, they satisfy any requirement that may apply under Section 2.1(b) and, if they do not, they shall be deemed to have been withdrawn as well, and, provided, further, that all Joining Requests (as defined below) shall (except as provided in the next sentence) remain in effect as long as any one or more of such individual Demand Requests remain in effect. Notwithstanding the foregoing, a Founder (or, solely with respect to one Registered Public Offering, Securitas Capital Fund as provided in Section 2.1(b)) making a Joining Request shall have the right to withdraw such request if at such time a Demand Request is permitted to be withdrawn under Section 2.2(a), (b) or (c).
(b) Notwithstanding the foregoing, if the total number of Registrable Securities specified in any Demand Request is less than a number of shares of Common Stock equal to the lesser of (i) 10% of all shares of Common Stock outstanding as of the date of such Demand Request, or (ii) shares of Common Stock having a value of $100 million, based on the Current Market Price as of the date of such Demand Request, then neither the rights of any Specified Shareholder, nor the obligations of the Company set forth in this Article II, shall arise in respect of such Demand Request(s), which shall be deemed null and void and without effect and will not be counted as a Demand Request for any purpose hereunder. Notwithstanding any provision hereof, Securitas Capital Fund shall be entitled to make a Demand Request only once (whether or not any such request is joined with another Demand Request made by a Founder, but excluding any such request that is withdrawn and nullified pursuant to Section 2.2(a), (b) or (c)), and all rights that Securitas Capital Fund may have under this Article II in its capacity as a Seller Specified Shareholder (iiias defined below) containing all information about such Holder required shall apply solely with respect to be included in such Registration Statement in accordance with applicable law. As soon one Registered Public Offering as practicable after to which it has made an effective Demand Request.
(c) The Company shall give prompt written notice (the "Notice of Demand Request") of its receipt of any such demand, Demand Request to all Specified Shareholders who hold of record any Registrable Securities and thereupon the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that of: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described Demand Request for disposition in the immediately two preceding sentences of this Section 4.2(d)a firm-commitment, each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause underwritten public offering; and (ii) all other Registrable Securities as to which Specified Shareholders who are the holders thereof shall have made a written request (a "Joining Request") to the Company for registration thereof within fifteen (15) days after the transmittal of such Notice of Demand Request by the proviso Company, in each case as necessary to Section 4.2(apermit such holders, together with a Demanding Shareholder (each, a "Seller" and, collectively, the "Sellers"), to sell Registrable Securities in such firm-commitment, underwritten public offering.
Appears in 1 contract
Sources: Registration Rights Agreement (Allied World Assurance Co Holdings LTD)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after October 30, 2000 the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to Shareholder may require the Company (pursuant to file a Registration Statement registering for sale all or part of their respective Registrable Securities written notice to the Company) to effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to of Shares of the Company (a "Demand Registration"). Such request (a "Demand Request") by the Shareholder shall (i) specifying specify the class and number of Registrable Securities Shares which the Shareholder intends to be included in such registration by such Holder sell or Holdersdispose of, and (ii) specifying whether state the intended method or methods by which the Shareholder intends to sell or dispose of disposition such Shares. In connection with any underwritten public offering, the underwriter thereof is pursuant shall be selected by the Company, subject to an Underwritten Offering (as defined below)the consent of the Shareholder, and (iii) containing all information about such Holder required to which shall not be included in such Registration Statement in accordance with applicable lawunreasonably withheld. As soon as practicable after the Upon receipt of such demanda Demand Request, the Company shall (xas requested) promptly notify all Holders from whom the request for registration has not been received and (yi) use reasonable best efforts cause to effect such registration be filed, within seventy-five (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations75) calendar days of the Registrable Securities that date of delivery to the Company of the request, a registration statement covering such Shares which the Company has been so requested to register; , providing for the registration under the Securities Act of such Shares to the extent necessary to permit the disposition of such Shares so to be registered in accordance with the intended method of distribution specified in such request (provided, howeverfurther, that in either case the Company may delay making such filing or taking such action by not more than sixty (i60) calendar days if the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price Company, prior to the time it would otherwise have been required to file such registration statement or take such action, determines in good faith that the filing of less than $5,000,000, (ii) such registration statement or the Holders will not be entitled to taking of such action would require the Company to effect more than three (3) Demand Registrations disclosure of material nonpublic information that, in the aggregate under this Agreementreasonable judgment of the Company, would be detrimental to the Company if so disclosed (and a delay would be likely to reduce the detrimental effect of such disclosure or obviate the need for such disclosure to be made), or would otherwise adversely affect a financing, acquisition, disposition, merger or other material transaction), and (iii) shall use its best efforts to have such registration statement declared effective by the Company will not be obligated SEC as soon as practicable thereafter. The Shareholder shall have the right to effect more than exercise up to one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersright.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Cistron Biotechnology Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or On and after the date that is 180 days after end of the Closing Date (as defined in the Merger Agreement)Earn Out Period, the Holders of Stockholders’ Representative may in his sole and absolute discretion request in a majority of Registrable Securities shall have the right to require written notice that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (or a “Demand Registration”) by delivering a written request therefor similar document pursuant to any other statute then in effect corresponding to the Company (iSecurities Act) specifying covering the number registration of any or all Registrable Securities to Stock held by the Stockholders; provided, that there must be included in such registration Registrable Stock having a minimum value of Ten Million Dollars ($10,000,000) (based on the then current market price of such Registrable Stock) or such lesser amount if it constitutes all of the Registrable Stock held by such Holder Shareholders participating in the registration (the “Registration Threshold”); provided, that the Registration Threshold shall be increased to Twenty Million Dollars ($20,000,000) or Holderssuch lesser amount if it constitutes all of the Registrable Stock held by such Shareholders participating in the registration, but in no event less than a minimum value of Five Million Dollars (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below$5,000,000), and if the Company is not eligible to register the sale or other disposition of Registrable Securities on Form S-3 (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawor a successor form). As soon as practicable after the Following receipt of such demandany notice under this Section 5.1, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be registered under the Securities Act and any other governmental requirements or regulations) of the all Registrable Securities Stock that the Company has been so Stockholders have requested be registered in a manner of disposition reasonably acceptable to register; providedthe Company, howeverincluding but not limited to, that an offering on a delayed or continuous basis pursuant to Rule 415 (ior any successor rule) under the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodAct.
(b) The offering of If the Company intends to have the Registrable Securities pursuant to such Demand Registration may be in the form Stock distributed by means of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval Stockholders shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the underwriter or underwriters. If any Stockholder who intends to sell Registrable Securities in the offering disapproves of the terms of the underwriting, such Stockholder may elect to withdraw all its Registrable Stock from the registration by written notice to the Company and the managing underwriter(sunderwriter. The underwriters shall be selected by the Company in its sole discretion.
(c) proposing Notwithstanding any provision of this Agreement to distribute their the contrary,
(i) the Company shall not be required to effect a registration pursuant to this Section 5.1 during the period starting with the date of filing by the Company of, and ending on a date 120 days following the effective date of, a registration statement pertaining to a public offering of securities through such Underwritten Offeringfor the account of the Company or on behalf of the selling stockholders under any other registration rights agreement which the Stockholders have been entitled to join pursuant to Section 5.2;
(ii) if the Board determines in good faith that it is in the best interests of the Company (A) not to disclose the existence of facts surrounding any proposed or pending acquisition, which underwriting agreement shall have indemnification provisions in substantially disposition, strategic alliance or financing transaction or other potential material event involving the form as Company or (B) to suspend the registration rights set forth in herein, the Company may (1) postpone the filing of any registration pursuant to this Section 4.9 5.1 and (2) suspend the rights of this Agreementany Stockholder to make sales pursuant to any registration statement for such a period of time as the Board may determine; provided, that (i) such periods of postponement and suspension may not exceed 120 days in the representations aggregate during any period of 12 consecutive months; and warranties by, and each Stockholder agrees in consideration of the other agreements obligations of the Company set forth herein to maintain any communication by the Company with respect to the postponement or suspension of the any registration pursuant to this Section 5.1 in confidence such that the Company may rely on the part ofsafe harbor provisions of Rule 100(b)(2)(ii) of Regulation FD under the Exchange Act with respect to such communications; provided, further, that in the event the Company shall give such notice, the Company to and for shall extend the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder period during which such registration statement shall be required to make any representations and warranties to, or agreements with, any underwriter maintained effective as provided in a Section 5.3(a) by the number of days by which the Company suspends such registration other than customary representations, warranties and agreements and statement; and
(iii) the liability of each Holder Company shall not be required to effect a registration pursuant to this Section 5.1 more than one time in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) twelve-month period and shall not be limited obligated to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made cause any audit to be undertaken in such Registration Statement, connection with any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to registration that the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall is not otherwise required to undertake at that time in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell connection with its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required obligations under the terms of such underwriting agreement. Securities Act, the Exchange Act and the rules and regulations thereunder.
(d) The Company shall not be obligated to effect or participate (a) and pay for more than two (2) Underwritten Offerings in any twelve (12) month periodthree registrations pursuant to this Section 5.1; provided, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed a registration requested pursuant to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company this Section 5.1 shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration for purposes of this Section 5.1(d) unless the Registration Statement relating thereto (i) it has been declared effective by the SECCommission, at least 75% of (ii) it has remained effective for the Registrable Securities requested to be included period set forth in the registration by the Holders are included in such registrationSection 5.3(a), and (iii) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder Stock pursuant to such registration is or becomes the not subject of to any stop order, injunction or other order or requirement of the SEC or Commission (other than any other governmental or administrative agencysuch stop order, injunction, or if any court prevents or otherwise limits the sale other requirement of the Registrable Securities pursuant to the registration, and in each case less than all Commission prompted by any act or omission of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder holders of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aStock).
Appears in 1 contract
Demand Registration. (a) Subject In addition to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Section 10.01, the Majority Holders of as a majority of Registrable Securities group, shall have the right (though such right need not be jointly exercised by the Holders of the Certificates), on not more than one occasion in the aggregate (except as provided in clause (d) below) (it being understood and agreed that two or more Holders of Certificates may make a joint Demand hereunder or any Holder of Certificates may join in a Demand made by any other Holder of Certificates, and any such joint Demand or joining in of a Demand shall be deemed to be a single Demand for all purposes hereof), and no more than once during any six-month period, to require the Company to file a Registration Statement registering register for offer and sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”"Demand") all or a portion of the Certificate Shares held, or represented by delivering a written request therefor Certificates held by such Holders, subject to the Company (i) specifying restrictions set forth herein; provided that no Holders of Certificates shall be entitled to make a Demand hereunder unless the number aggregate offering price of Registrable Securities the securities to be included offered in such registration by Demand (net of underwriting discounts and commissions) exceeds the amounts set forth below depending on the time such Holder or HoldersDemand is exercised, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. follows: As soon promptly as practicable after the receipt Company receives from a Holder of such demandCertificates (together with any other Holder who elects to participate in the registration requested under the Demand, the "Demanding Holder") a notice pursuant to this Section 10.02(a) (a "Demand Notice"), a copy of which shall have also been delivered to each of the other Holders of Certificates at the same time as to the Company, demanding that the Company register for offer and sale under the Securities Act Certificate Shares, subject to Section 10.02(b), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (yi) use all reasonable best efforts to effect file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such registration form as the Company may reasonably deem appropriate (includingprovided that the Company shall not, without limitationunless the Company otherwise determines, appropriate qualification under applicable blue sky be obligated to register any securities on a "shelf" Registration Statement or other state otherwise to register securities laws for offer or sale on a continuous or delayed basis and appropriate compliance with applicable regulations issued the Company actually maintains such "shelf" Registration Statement effective) 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 and any other governmental requirements or regulations) as promptly as practicable after the date of the Registrable Securities that the Company has been so requested to registerfiling of such Registration Statement; provided, however, that no Demanding Holder 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 Certificate Shares unless such Demanding Holder has made an Election. Subject to Section 10.02(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 Holder or Holders for resales of Certificate Shares for an Effectiveness Period ending on the earlier of (i) 30 days from the Holders shall not make a request for a Demand Effective Time of such Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Statement and (ii) such time as all of such Certificate Shares have been disposed of by the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodselling Holders.
(b) The offering 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 Registrable Securities pursuant Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to such Demand Registration may be not disclose in the form of an underwritten public offering (an “Underwritten Offering”). In such caseRegistration Statement a planned or proposed financing, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringacquisition or other corporate transaction or other material information, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with have determined in good faith that such disclosure is not in the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings best interests of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) its stockholders; provided that no one such postponement shall also be made to exceed 90 days in any six-month period and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of all such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) postponements shall not exceed 180 days in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementaggregate. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf advise each of the HoldersDemanding Holders in writing of any such determination as promptly as practicable after such determination.
(c) If, in In connection with an Underwritten Offeringunderwritten offering, if the managing underwriter(s) underwriter or underwriters advise the Company that in its or their reasonable opinion the number of securities proposed Applicable Securities subject to a Demand exceeds the number which can be included sold in such registration exceeds the Underwriters’ Maximum Numberoffering, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that Registration the number of Registrable Applicable Securities requested by that, in the Holders thereof to opinion of such managing underwriter or underwriters, can be included sold in such registration that does not exceed such Underwriters’ Maximum Numberoffering (provided that, such Registrable in the event of a joint Demand, the Applicable Securities to included shall be allocated pro rata among the Demanding Holders thereof on the basis of the relative number of Registrable Applicable Securities each such Demanding Holder has requested to be included therein by each in such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistration).
(d) The Company may include in any Registration requested pursuant to Section 10.02(a) hereof other securities for sale for its own account or for the account of another Person, subject to the provisions of 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 Demanding Holders, 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 and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, shares requested to be included in such underwritten offering by any securityholder of the Company other than the Holder (each an "Other Registering Stockholder") possessing contractual rights to have its shares included in such offering prior to the Applicable Securities, on the date hereof, (ii) second, the Applicable Securities requested to be registered by the Demanding Holder and (iii) third, any other securities requested to be included in such Registration. In the event that 20% or more of the Certificate Shares requested by the Holders to be included in such Demand initiated by the Holders are excluded therefrom and securities held by other security holders (other than the Holders) are included in such Demand, the Holders shall be entitled to exercise an additional Demand in accordance with this Section 10.02.
(e) A registration will not Demanding Holder 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 10.02(b), or (iv) if such Demanding Holder is prevented pursuant to Section 10.02(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 Holder shall nonetheless be deemed to have been effected as a (and, therefore, requested) for purposes of Section 10.02(a) hereof if such Demanding Holder withdraws any Demand Registration unless (A) pursuant to clause (i) of the Registration Statement relating preceding sentence after the Commission filing fee is paid with respect thereto has been declared effective by or (B) pursuant to clause (iv) of the SEC, preceding sentence in circumstances where at least 7550% of the Registrable Applicable Securities requested to be included in such Registration by such Demanding Holder could have been included, and in each case, (x) the Company has not availed itself of Section 10.02(b) with respect to such Registration request or (y) the Company has availed itself of Section 10.02(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 10.02(b). If a Demanding Holder 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 Holder shall be entitled to participate in such Registration pursuant to Section 10.03, but in such case the Intended Offering Notice shall be required to be given to such Demanding Holder at least five (5) consecutive Business Days immediately prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 consecutive Business Days immediately following after receipt of the request to withdraw Demand from such Demanding Holder and such Demanding Holder shall be required to give the Piggy-back Notice no later than three (3) consecutive Business Days immediately after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 10.02 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 Holder, and the other co-lead underwriter shall be selected by such Demanding Holder and shall be reasonably acceptable to the Company, provided that, in the event of a joint Demand, the other co-lead underwriter shall be selected by a majority in interest (by reference to the number of Applicable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (iiRegistration) of the proviso Demanding Holders, and shall be reasonably acceptable to Section 4.2(a)the Company. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until fortyAny additional co-five (45) days after the commencement of the distribution managing underwriters shall be selected by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationCompany. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).37
Appears in 1 contract
Sources: Contingent Appreciation Certificate Agreement (Crown Media Holdings Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after second anniversary of the IPO Closing Date (as defined in Date, if the Merger Agreement)Holder shall make a written request to the Company, the Holders Company shall cause to be filed with the Commission a registration statement meeting the requirements of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “"Demand Registration”) by delivering a "), and the Holder shall be entitled to have included therein all or such number of Holder's Registrable Securities, as the Holder shall request in writing; provided, -------- however, that the fair market value of the Holder's Registrable Securities to be ------- included in such registration shall not be less than $50.0 million as of the date of such written request therefor (unless such Registrable Securities represent all of the Holder's Registrable Securities); and provided further, however, that no ---------------- ------- request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company (i) specifying or if there is no such officer, the President), and shall specify the number of Registrable Securities to be included in such registration by such Holder or Holdersregistered, (ii) specifying whether the intended method methods of disposition thereof and that the request is for a Demand Registration pursuant to an Underwritten Offering this Section 2.1(a).
(as defined below), and b) The Company shall be entitled to postpone for up to sixty (iii60) containing all information about such Holder days the filing of any Demand Registration statement otherwise required to be included in such prepared and filed pursuant to this Section 2.1 (or delay seeking effectiveness of a Registration Statement which has been filed), if the Board determines, in accordance with applicable law. As soon as practicable after its good faith reasonable judgment, that such registration would materially interfere with, or require premature and seriously detrimental disclosure of, any material financing, acquisition or reorganization or other material matter involving the receipt Company or any of its subsidiaries and the Company promptly gives the Holder notice of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerdetermination; provided, however, that (ithe Company -------- ------- shall not have postponed pursuant to this Section 2.1(b) the Holders shall not make filing of any other Demand
2.2 Following receipt of a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000Registration, (ii) the Holders will not be entitled to require the Company shall:
(a) File the registration statement with the Commission as promptly as practicable, and, subject to Section 2.1(b), shall use the Company's reasonable efforts to have the registration statement declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.a registered public offering; and
(b) The offering Use the Company's reasonable efforts to keep the relevant registration statement Continuously Effective for up to ninety (90) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or filing of the Registration Statement or seeking effectiveness thereof is postponed as permitted by Section 2.1(b), the foregoing period shall be extended by the aggregate number of days of such Demand Registration may suspension or postponement.
2.3 A registration pursuant to this Section 2 shall be in the on such appropriate registration form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval Commission as shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon selected by the Company and in conformity with written information furnished be reasonably acceptable to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from permit the disposition of the Registrable Securities disposed in accordance with the intended method or methods of by such Holder disposition specified in the request pursuant to such Underwritten Offering. No Holder may participate in Section 2.1(a).
2.4 If any such Underwritten Offering unless such Holder agrees registration pursuant to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior this Section 2 involves an underwritten offering conducted by (whether on a "firm commitment," "best efforts" or "all reasonable efforts" basis or otherwise), or an agented offering, the Company on its own behalf Holder shall have the right to select the underwriter or on behalf of underwriters and manager or managers to administer such underwritten offering or the Holdersplacement agent or agents for such agented offering; provided, however, that each Person so -------- ------- selected shall be reasonably acceptable to the Company.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of 2.5 No securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by (including without limitation shares to be sold for the Holders Company's account) shall be included in a Demand Registration any registration pursuant to this Section 2 without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesHolder.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Timberland Growth Corp)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Date, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a3.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 3.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any Table of Contents event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numbermaximum number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numbermaximum number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a). If (i) a registration requested pursuant to this Section 4.2 3.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 3.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 3.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d3.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a).
Appears in 1 contract
Demand Registration. (a) Subject At any time that a Stockholder Director Nominee serves as a member of the Board, one or more Stockholders (the “Requesting Stockholders”), acting through the Stockholder Representative, may make a written request to the provisions hereofCompany for registration of (A) all of the Registrable Securities held by such requesting Stockholders or (B) any part of the Registrable Securities held by such requesting Stockholders, provided in each case that the then current market value of the Registrable Securities to be registered is at least $50.0 million in the aggregate (the “Minimum Registrable Securities”). Any such requested registration shall hereinafter be referred to as a “Demand Registration.” Each request for a Demand Registration shall specify the aggregate amount of Registrable Securities to be registered and the intended methods of disposition thereof.
(b) In no event shall the Company be required to effect more than one Demand Registration.
(c) A Requesting Stockholder may withdraw its Registrable Securities from a Demand Registration at any time. If as a result of such withdrawal the number of Registrable Securities subject to such Demand Registration is less than the Minimum Registrable Securities, the Company shall cease all efforts to secure registration and such registration nonetheless shall be deemed a Demand Registration for purposes of Section 3.1(b); provided, however, if such withdrawal is based on the reasonable determination of the Requesting Stockholders that since the date of such request there has been a material adverse change in the business or prospects of the Company or in general market conditions, it shall not be deemed a Demand Registration for purposes of Section 3.1(b).
(d) No Demand Registration shall be deemed to have been effected if an underwritten Public Offering is contemplated by such Demand Registration and the conditions to closing specified in the underwriting agreement are not satisfied due to any act or omission by the Company.
(e) If the filing, initial effectiveness or continued use of a registration statement in respect of a Demand Registration at any time on or after would require the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Company to make an Adverse Disclosure, the Holders Company may, upon giving prompt written notice of such action to the Stockholder Representative, delay the filing or initial effectiveness of, or suspend use of, the such registration statement for a majority shortest possible period of time determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Requesting Stockholders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the prospectus relating to the Demand Registration in connection with any sale or offer to sell Registrable Securities Securities. The Company shall immediately notify the Requesting Stockholders of the expiration of any period during which it exercised its rights under this Section 3.1(e).
(f) The Company shall have the right to require select the Company to file managing underwriter or underwriters for the offering.
(g) If the managing underwriter or underwriters of a Registration Statement registering for sale all or part proposed underwritten Public Offering of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number class of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000Registration, (ii) inform the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations Requesting Stockholders in the aggregate under this Agreementwriting that, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numberopinion, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each in such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without exceeds the prior written consent of Maximum Offering Size, the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution number of Registrable Securities thereunder is or becomes that can be included without having such an adverse effect shall be allocated pro rata among the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, Stockholders that have requested participation in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date (as defined in initial public offering of the Merger Agreement)Company’s Common Stock pursuant to an effective registration under the Securities Act, the Holders holders of a majority of the Registrable Securities shall have the right to require may notify the Company that they intend to file a Registration Statement registering offer or cause to be offered for public sale all or part any portion of their respective Registrable Securities under in the Securities Act (a “Demand Registration”) by delivering a written request therefor to manner specified in such request. Upon receipt of such request, the Company (i) specifying the number shall promptly deliver notice of such request to all Investors holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for written notice and in such event the right of any Person to participate in such registration has not been received shall be conditioned upon such Person’s participation in such underwritten public offering and (y) the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable its best efforts to expeditiously effect (but in any event no later than sixty (60) days after such request) the registration of all Registrable Securities whose holders request participation in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of Act, but only to the Registrable Securities that the Company has been so requested to registerextent provided for in this Agreement; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) registration pursuant to a request under this Section 2 more than two (2) Underwritten Offerings times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve (12which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) month periodunless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating shareholders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numberstatement and, such if necessary, (iv) Registrable Securities to be allocated pro rata among the Holders thereof on the basis Securities. If there is a reduction of the number of Registrable Securities requested pursuant to clause (iv), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registration, and offering (which approval will not be unreasonably withheld or delayed). 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 or a transaction to which Rule 145 of the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has Securities Act is applicable) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 1 contract
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on during such periods as are provided for in the Lock-Up Agreement or after as are agreed by the date Issuer (the “Demand Request”) requesting that is 180 the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare and, within 30 days after such request, file with the Closing Date Commission a registration statement with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement to be declared effective under the 1933 Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(as defined in the Merger Agreement), i) the Holders of a majority of Registrable Securities shall have the right may collectively exercise their rights to require the Company request registration under this Section 2.01(a) on not more than two occasions (each such registration being referred to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (herein as a “Demand Registration”);
(ii) by delivering a written request therefor the Issuer shall not be required to effect the Company (i) specifying Demand Registration hereunder unless the aggregate number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled is equal to require the Company to effect or more than three (3) Demand Registrations in the aggregate under this Agreement, and 1,000,000 shares;
(iii) the Company will method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer’s written consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be obligated required to effect more than one (1) any Demand Registration in any six (6) month periodhereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) The offering Notwithstanding any other provision of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject this Agreement to the approval of the Companycontrary, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested by Holders pursuant to this Section 2.01 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECeffected, at least 75% of the Registrable Securities and, therefore, not requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effectiverights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, (i) if such Demand Registration Statement has not become effective under the 1933 Act or (ii) if such Demand Registration, after it became effective under the related offer1933 Act, sale or distribution of Registrable Securities thereunder is or becomes was not maintained effective under the subject 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Holders within the periods referred to in Section 2.01(a), the Holders shall not lose their right to their Demand Registration under Section 2.01 if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer (but not for the account of stockholders other than Holders) in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if any court prevents such Holders are advised in writing (with a copy to the Issuer) by the lead or otherwise limits managing underwriter referred to in Section 2.03(b) that, in such underwriter’s good faith view, the number of shares of such Registrable Securities and additional equity securities exceeds the largest number of shares that can be sold in such registration without having an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated (or that the inclusion of shares for the account of the Issuer would, in such underwriter’s good faith view, have such an adverse effect), then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering (the “Maximum Offering Size”) shall be allocated in the following priority:
(i) first, so much of the Issuer Securities proposed to be registered for the account of the Holders as would not cause the offering to exceed the Maximum Offering Size (to be allocated among such Holders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each); and
(ii) second, all Registrable Securities requested to be included in such registration for the account of the Issuer; provided that the Issuer may not include securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any equity securities be included by the registrationIssuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, and in the Issuer shall provide a written notice to each case less than Holder, advising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 7 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 2.01(d), elect to so include Registrable Securities in the Demand Registration by written notice to such effect to the Issuer specifying the number of Registrable Securities desired to be so included by such Holder.
(e) If the Issuer invokes a Market Interfering Delay during the Subsequent Period, the Issuer shall give prompt notice at least 30 days prior to the anticipated filing date of the registration statement relating to the registration which is deemed the subject of such Market Interfering Delay, to each Holder, which notice shall set forth such Holder’s rights under this Section 2.01(e) and shall offer such Holder the opportunity to include in such registration statement such number of Registrable Securities as the Holders so desire but not to have been effected as a Demand Registration or exceed up to 50% of the Registrable Securities then held by all such Holders. Upon the request of any such Holder made within 20 days after the receipt of notice from the Issuer (ii) which request shall specify the number of Registrable Securities intended to be registered by such Holder), the Issuer shall use its commercially reasonable efforts to effect the registration under the 1933 Act of all Registrable Securities that the Issuer has been so requested to register by all such Holders, to the extent requisite to permit the disposition of the Registrable Securities so to be registered, provided that if, at any time after giving notice of its intention to register any Issuer Securities pursuant to this Section 4.2 does not remain continuously 2.01(e) and prior to the effective until forty-five (45) days after the commencement date of the distribution by the Holders of the Registrable Securities covered by registration statement filed in connection with such registration, then the Company Issuer shall continue determine for any reason not to register the securities to be obligated offered by Issuer, the Issuer shall terminate the Market Interfering Delay and shall give notice to effect a Demand Registration pursuant all such Holders and, thereupon, shall be relieved of its obligation to this Section 4.2 of the register any Registrable Securities included in connection with such registration. In circumstances not including the events described in the immediately two preceding sentences of No registration effected under this Section 4.2(d)2.01(e) shall relieve the Issuer of its obligations to effect any Demand Registration to the extent required by this Agreement. The Issuer shall pay all Registration Expenses in connection with such registration during the Subsequent Period. Notwithstanding the foregoing, each Holder the Issuer shall not be entitled to both a Disadvantageous Condition Delay and a Market Interfering Delay during the Subsequent Period and is entitled to only one Market Interfering Delay during the Subsequent Period in any event. Furthermore, the duration of Registrable Securities the Subsequent Period shall be permitted voluntarily to withdraw all or any part extended by the number of its Registrable Securities from a Demand Registration at any time prior days equal to the commencement period of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of any Disadvantageous Condition Delay occurring during the proviso to Section 4.2(a)Subsequent Period.
Appears in 1 contract
Sources: Registration Rights Agreement (Credence Systems Corp)
Demand Registration. (a) Subject In the event that following the period the Holder is prohibited from selling the Registrable Securities by the provisions of the underwriting agreement relating to the provisions hereofInitial Public Offering, at any time on Holder or after the date that is 180 days after the Closing Date Holders (as defined in the Merger Agreement), the Holders of a majority i) desire to sell shares of Registrable Securities shall have owned by such Holder or Holders and (ii) an exemption from registration under the right Securities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), is not available to require enable the Holder or Holders to dispose of the number of shares of Registrable Securities it desires to sell at the time and in the manner it desires to do so, then upon the written request of any Holder or Holders requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated within 15 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementregistered; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect file a registration statement relating to any registration request under this Section 2(a) (A) unless the aggregate requests by the Holder or participate Holders for such registration cover not less than 5.0% of the outstanding Common Stock, (aB) with respect to more than two an aggregate of 3 registrations (2which shall be increased to an unlimited number of registrations if such additional registrations are effected on Form S-3 or any successor similar short-form registration statement) Underwritten Offerings in under this Section 2(a), (C) within a period of 180 days after the effective date of any twelve other registration statement relating to any registration request under this Section 2(a), or (12D) month periodif with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and (b) in any Underwritten Offering during any lock-up period required by regulations thereunder, or the underwriter(s) in any prior underwritten offering form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company on at the end of its own behalf or on behalf fiscal year, in which case the filing may be delayed until the completion of such regular audit (unless the Holders requesting such registration agree to pay the expenses of the Holders.
(c) If, Company in connection with such an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person audit other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aregular audit).
Appears in 1 contract
Sources: Registration Rights Agreement (Provantage Health Services Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such caseIf, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringat any time after August 11, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement2000, or (ii) ifprior to August 11, 2000 in the case event of an Underwritten Offeringa CHANGE OF CONTROL or INSOLVENCY PROCEEDINGS as those terms are defined in the Purchase Agreement, the Purchaser shall request the Company in writing to register under the Securities Act of 1933, as amended (the "SECURITIES ACT"), any shares of the Common Stock, no par value, of the Company (the "COMMON STOCK") issuable upon conversion of the Series A Non-Voting Convertible Preferred Stock, no par value (the "PREFERRED STOCK") and, if required by the Securities and Exchange Commission (the "SEC"), the shares of Preferred Stock owned by the Purchaser (the shares of Common Stock and, if applicable, Preferred Stock subject to such request being herein referred to as the "SUBJECT STOCK"), the Company fails shall use its reasonable best efforts to provide Full Cooperationcause the shares of Subject Stock specified in such request to be registered as soon as reasonably practicable so as to permit the sale thereof, and in connection therewith shall prepare and file a Form S-3 registration statement or such other form as is then available (or any successor form of registration statement to such Form S-3 or other available registration will statement) with the SEC under the Securities Act to effect such registration; PROVIDED, HOWEVER, that each such request shall (i) specify the number of shares of Subject Stock intended to be deemed not to have been effected for purposes of clause offered and sold, (ii) express the present intention of the proviso Purchaser to Section 4.2(a)offer or cause the offering of such shares of Subject Stock for distribution, (iii) describe the nature or method of the proposed offer and sale thereof, and (iv) contain the undertaking of the Purchaser to provide all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such registration statement. If (i) The Purchaser shall not be entitled to request more than one demand registration statement under this Agreement in any 12-month period, and the Purchaser shall not be entitled to more than a total of two requests for demand registration requested statements pursuant to this Section 4.2 is deemed Agreement. The Company agrees not to have been effected as a Demand Registration or (ii) the grant to any other person registration requested rights pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after which such person would have the commencement right to register shares of the distribution Common Stock on a registration statement filed by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to the exercise of Purchaser's rights under this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 1 contract
Demand Registration. (a) Subject One or more Requesting Shareholders shall be entitled to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of an amount of Registrable Securities that, in the aggregate taking into account all of the Requesting Shareholders, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued as promptly as practicable under the Securities Act of:
(i) the offer and any other governmental requirements or regulations) sale of the Registrable Securities that which the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 2.1(b); and
(iii) all equity securities of the Company will not which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 2.1; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Shares, if any, to be obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such Each Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, if then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Within five (5) business days after receipt of a Demand, the Company shall give written notice of such Demand to all other Shareholders, if any. Subject to Section 2.1(h), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held with respect to which the Company has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been mailed. Such written request shall comply with the Holders requirements of a Demand as set forth in this Section 2.1(b).
(c) Demand Registrations shall be included in on (i) if option (ii) and (iii) below are not available, Form S-1 or any similar long-form registration (“Long-Form Registration”), (ii) if option (iii) below is not available, Form S-3 or any similar short form registration, if such short form registration is then available to the Company, or (iii) Form S-3ASR if the Company is, at the time a Demand is made, a Well-Known Seasoned Issuer (a Demand Registration without under each of clauses (ii) and (iii), a “Short-Form Registration”), in each case, in compliance with the prior written consent Securities Act and in the form of registration statements that the holders Company has customarily prepared and filed with the SEC for issuances of a majority in interest of the Registrable Securitiesits Shares. The Company shall not be required to effect more than two Long-Form Registrations per fiscal year.
(d) Effective Demand Registration. A registration will Demand Registration shall not be deemed to have been effected as effected:
(i) unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared effective by the SEC, at least 75% SEC and remains effective in compliance with the provisions of the Securities Act and the laws of any U.S. state or other jurisdiction applicable to the disposition of Registrable Securities requested covered by such registration statement until such time as all of such Registrable Securities shall have been disposed of in accordance with such registration statement or there shall cease to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that any Registrable Securities;
(ii) if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Entities or court for any reason other governmental or administrative agency, or if than a violation of applicable law solely by any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, Selling Shareholder and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or has not thereafter become effective;
(iiiii) if, in the case of an Underwritten Offering, the conditions to closing specified in an underwriting agreement applicable to the Company fails are not satisfied or waived other than by reason of any breach or failure by any Selling Shareholder; or
(iv) if the Company effects a postponement, declares a Suspension Period or similarly delays the exercise of rights under this Agreement pursuant to provide Full Cooperationthe terms in the paragraph below or the terms of this Agreement generally. Notwithstanding the foregoing, then such registration will the Company shall not be deemed not obligated to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) maintain the effectiveness of a registration requested Long-Form Registration, filed pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration Registration, for a period longer than 75 days or (ii) effect any Demand Registration (A) within six (6) months of the effective date of a registration requested statement with respect to a “firm commitment” Underwritten Offering in which all Piggyback Sellers were given “piggyback” rights pursuant to this Section 4.2 does 2.2 (and at least 50% of the number of Registrable Securities requested by such Piggyback Sellers to be included in such Demand Registration were included), (B) within three (3) months of the effective date of a registration statement with respect to any other Demand Registration, (C) within 90 days from the date on which a Marketed Underwritten Offering was priced or (D) if, in the reasonable judgment of the Board, it is not remain continuously effective until fortyfeasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements or financial information, provided that the Company shall use commercially reasonable efforts to obtain such financial statements or financial information as promptly as practicable. In addition, the Company shall be entitled to postpone (upon written notice to all Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice in any period of twelve (12) consecutive months and in no event for more than an aggregate of one-hundred twenty (120) days in any three-hundred sixty-five (45365) days after consecutive day period) if the commencement Board determines in its reasonable judgment that the filing or effectiveness of the distribution by registration statement relating to such Demand Registration would cause the Holders disclosure of the Registrable Securities covered by such registrationmaterial, then non-public information that the Company shall continue to be obligated to effect has a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d)bona fide business purpose for preserving as confidential, each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationprovided, provided however, that such registration nonetheless postponement shall count terminate at such time that such information is no longer material, non-public information or the Company no longer has a bona fide business purpose for preserving such information as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)confidential.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date Date, any Avista Holder or PGS may request, in writing (as defined in the Merger Agreementa “Demand Request”), the Holders of a majority of Registrable Securities shall have the right to require that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of its or their respective Registrable Securities under the Securities Act Shares (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the Registrable Shares proposed to be sold by the Holder or Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 2.1(g) hereof) represent, in the aggregate, more than 25% of the total number of Registrable Shares held by delivering a written request therefor to all Avista Holders or PGS, as the Company case may be.
(ib) specifying Each Demand Request shall specify the number of Registrable Securities Shares proposed to be included in such registration by such Holder or Holders, (ii) specifying whether sold and the intended method of disposition thereof is pursuant to of the Registrable Shares (including an Underwritten Offering (as defined belowpursuant to Section 2.1(d) or a Shelf Registration pursuant to Section 2.1(f), and (iii) containing all information about such Holder required ). Subject to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandSection 2.1(h), the Company shall file the Demand Registration within 90 days after receiving a Demand Request (xthe “Required Filing Date”) promptly notify and shall use all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect cause the same to be declared effective by the SEC as promptly as practicable after such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerfiling; provided, however, that the Company shall not be required to effect (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three four (34) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in Requests made by the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Avista Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall more than four (together with the Holders proposing 4) Demand Registrations pursuant to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing Demand Requests made by PGS, each pursuant to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement2.1(a); provided, further, that (iif 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) the representations and warranties by, and the other agreements on the part ofbelow, the Company applicable Holders shall each have the right, with respect to and for the benefit of the underwriter(s) shall also be made each such exclusion, to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersrequest one additional Demand Registration.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected 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 Statement relating thereto has been declared effective by the SECExpenses, at least 75% of the Registrable Securities requested to be included as hereinafter defined, in the registration by the Holders are included in connection with such withdrawn registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto); provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution an offering of Registrable Securities thereunder Shares pursuant to a registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then 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 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 consent of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 2.1(a) unless such Person (i) agrees to sell such Person’s Registrable Shares on the 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 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 may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Shares, and the liability of each such Person will be in proportion to the number of Registrable Shares included in such Demand Registration, 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 Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration for an Underwritten Offering unless the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the 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 that even after exclusion of all securities of other Persons pursuant to the immediately preceding sentence, the amount of Registrable Shares proposed to be 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 such shares shall be allocated pro rata among the Requesting Holders on the basis of the number of Registrable Shares owned by each such Requesting Holder.
(f) 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 “shelf offering” under the Securities Act to be made on a continuous basis pursuant to Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC (such offering, a “Shelf Offering”). The Shelf Offering shall be on Form S-1 (or on Form S-3 or any similar successor form, if the Company is eligible to 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 Shares covered by such Shelf Offering have been sold or may be sold at one time pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Avista Holders or the affected PGS Holders, as the case may be.
(g) Upon receipt of any Demand Request (including a Demand Request pursuant to Section 2.1(i)), the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Holders (which notice shall include the number of Registrable Shares of the Requesting Holder proposed to be included in the Demand Registration and a description of the proposed disposition of such Registrable Shares), who shall have the right, exercisable by written notice to the Company within 20 days of their receipt of the Company’s notice, to elect to include in such Demand Registration (including a Shelf Funded Repurchase pursuant to Section 2.1(i)) such portion of their Registrable Shares as they may request. All Holders requesting to have all or any part of their Registrable Shares included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Agreement.
(h) The Company may defer the filing (but not the preparation) of a registration statement required by Section 2.1(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date of the registration statement contemplated by clause (ii) below) if (i) at the time the Company receives the Demand Request, the Company or any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the Board of Directors of the Company determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board of Directors had determined to effect a registered underwritten public offering of the Company’s securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 2.1(h) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) of the proviso preceding sentence, the proposed registration for the Company’s account is abandoned. In order to Section 4.2(a). If (i) defer the filing of a registration requested statement pursuant to this Section 4.2 2.1(h), the Company shall promptly (but in any event within ten days), upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.1(h) and a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificate, the holders of a majority of the Registrable Shares held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been effected as made for all purposes of this Agreement. The Company may defer the filing of a Demand Registration or (ii) the particular registration requested statement pursuant to this Section 4.2 does not remain continuously effective until forty-five 2.1(h) only once.
(45i) days after the commencement In lieu of any of the distribution by Demand Registrations and if the Company has established a “shelf offering” of newly issued shares of Common Stock (the “Company Shelf Shares”) under the Securities Act to be made on a continuous basis pursuant to Rule 415 on Form S-3 (the “Company Shelf”), each of the Avista Holders and PGS may issue a Demand Request for the Company to sell Company Shelf Shares and use the proceeds from such sale to purchase all or any portion of the Registrable Securities covered Shares held by such registrationRequesting Holder (the “Shelf Funded Repurchase”) at a price equal to the price at which the Company Shelf Shares were sold less any underwriting discounts and commissions. Subject to the terms of this Agreement, then the Company shall continue use its best efforts to keep such Company Shelf continuously effective under the Securities Act until all Registrable Shares included in the applicable Demand Request have been purchased by the Company or may be obligated to effect a Demand Registration sold at one time pursuant to this Section 4.2 of Rule 144 as determined by the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior counsel to the commencement of marketing of Company pursuant to a written opinion letter to such Demand Registrationeffect, addressed and acceptable to the Company’s transfer agent and the affected Avista Holders or PGS, as the case may be. The Company will not be responsible for any fees or expenses incurred by the Avista Holders or PGS in connection with the Shelf Funded Repurchase other than as provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to in Section 4.2(a)2.7 hereto.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor following but not prior to the Company (i) specifying the number close of Registrable Securities to be included in such registration by such Holder or Holdersbusiness on June 29, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand2011, the Company shall receive a request from a Holder or Holders holding at least 50% of the Registrable Securities (xcollectively, the “Demand Holder”) requesting that the Company effect the registration under the 1933 Act of any or all of the Registrable Securities held by the Demand Holder, which notice shall specify the amount and intended method or methods of disposition of such Registrable Securities (each such request shall be referred to herein as a “Demand”), the Company shall, within five days after receiving the Demand, give written notice (the “Request Notice”) of such registration request to all other Holders, and thereupon will, subject to the limitations set forth in Section 2.01(c), as promptly notify all Holders from whom as possible, file (such filing to occur no later than 45 days after the request for registration has not been received date of the Demand) and (y) thereafter use its commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be declared effective under the Securities 1933 Act and any other governmental requirements or regulations) within 90 days after the date of the Demand, a Registration Statement to effect the registration under the 1933 Act of (i) such Registrable Securities that which the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request for a Demand Registration Holder under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, the Demand and (ii) the Holders will not be entitled to require Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by written request to the Company will not by the Holders within ten days after the giving of the Request Notice (which request shall specify the amount and intended method or methods of disposition of such Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended method(s) thereof as aforesaid) of the Registrable Securities and such other securities so to be obligated to effect more than one (1) Demand Registration in any six (6) month periodregistered.
(b) The offering of the Registrable Securities A registration requested pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in this Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration 2.01 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto unless: (i) it has been declared effective by the SECSEC or has otherwise become effective under the 1933 Act and remains effective for not less than 180 days, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationor, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter or underwriters is required by law for the related offer, delivery of a Prospectus in connection with the sale or distribution of Registrable Securities thereunder is by an underwriter or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, dealer; or (ii) if, in it has been filed with the case of an Underwritten Offering, SEC but abandoned or withdrawn at the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) request of the proviso Demand Holder prior to Section 4.2(a). If effectiveness, other than an abandonment or withdrawal requested because of: (iA) the stock price of the Common Stock falling 15% or more since the delivery of a request for registration requested pursuant to this Section 4.2 is deemed not to have been effected 2.01, (B) a material adverse change in the Company’s and the Subsidiaries’ financial condition, business, assets, results of operations and condition (financial or otherwise), taken as a whole, or (D) the discovery of materially adverse, non-public information concerning the Company and the Subsidiaries, taken as a whole.
(c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 2.01(b):
(i) the Company shall not be obligated to file a Registration Statement in respect of a Demand Registration or on more than one occasion;
(ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily may elect to withdraw all or any part of its Registrable Securities from a Demand Registration registration pursuant to this Section 2.01 at any time prior time, and if all such Holders do so, the Company shall cease its efforts to secure registration; and
(iii) all Demand registrations pursuant to this Section 2.01 shall be on Form S−1, or on Form S-3 if the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration Company is then eligible to register for purposes of clause (ii) of resale the proviso to Section 4.2(a)Registrable Securities on Form S-3.
Appears in 1 contract
Sources: Registration Rights Agreement (Soko Fitness & Spa Group, Inc.)
Demand Registration. (a) Subject to In the provisions event the Holders have not sold all of their Registrable Securities within one year from the date hereof, if the Holder or Holders of an aggregate of at any time on least 50% of the Registrable Securities then outstanding propose to dispose of at least 20% of the then Registrable Securities (such Holder or after Holders being herein called the date that is 180 days after the Closing Date (as defined in the Merger Agreement"Initiating Holders"), the Initiating Holders of a majority of Registrable Securities shall have may request, on one occasion, the right Company, in writing, to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying effect such registration, stating the number of shares of Registrable Securities to be included in such registration disposed of by such Holder or Holders, Initiating Holders (iiwhich shall be not less than 20% of the then Registrable Securities) specifying whether and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawdisposition. As soon as practicable after the Upon receipt of such demandrequest, the Company will give prompt written notice thereof to all other Holders whereupon such other Holders shall give written notice to the Company within twenty (x20) promptly notify all Holders from whom days after the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) date of the Registrable Securities that Company's notice (the Company has been so requested "Notice Period") if they propose to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price dispose of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering shares of the Registrable Securities pursuant to such Demand Registration may be in registration, stating the form number of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition shares of the Registrable Securities to be disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement or Holders and completes and executes all questionnaires, powers intended method of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementdisposition. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by promptly after the underwriter(s) in any prior underwritten offering conducted by Notice Period the Company on its own behalf or on behalf registration under the 1933 Act of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included specified in the registration by requests of the Initiating Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretorequests of the other Holders; provided, however, that such period may be delayed by the Company for up to ninety (90) days in total if, after it has (A) upon the advice of counsel, at the time the Company is required to exercise its best efforts to cause such registration statement to become effective, (i) such Registration Statement or delay is advisable and in the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement best interests of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale Company because of the Registrable Securities pursuant to the registration, and in each case less than all existence of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statementnon-public material information, or (iiB) if, in the case of an Underwritten Offering, to allow the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or complete any part pending audit of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)financial statements.
Appears in 1 contract
Sources: Employment Agreement (Diplomat Corp)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after during the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Registration -------------------- Period, the Holders holders of a majority of Registrable Securities shall have the right to require Restricted Shares may request the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities register under the Securities Act (all or a “Demand Registration”) portion of the Restricted Shares held by delivering a written request therefor them for sale in the manner specified in such notice; provided, that the reasonably -------- anticipated aggregate net proceeds to the Company sellers from such public offering would exceed (iA) specifying the number of Registrable Securities to $30 million at any time when such Restricted Shares could not be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is sold pursuant to an Underwritten Offering Rule 144(k) under the Securities Act or (as defined below)B) $50 million at any time when such Restricted Shares could be sold pursuant to Rule 144(k) under the Securities Act. Notwithstanding anything to the contrary contained herein, and (iii) containing all information about such Holder required to no request may be included in such Registration Statement in accordance with applicable law. As soon as practicable made under this Section 1.02 within 90 days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Restricted Shares shall have been entitled to join pursuant to Sections 1.01 or 1.03 and in which there shall have been effectively registered all Restricted Shares as to which registration shall have been requested.
(b) Following receipt of such demandany notice under Section 1.02(a), the Company shall (x) promptly notify all Holders holders of Restricted Shares from whom the request for registration such notice has not been received and (y) shall use reasonable its best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued register under the Securities Act Act, for public sale in accordance with the method of disposition specified in such notice from requesting holders, the number of Restricted Shares specified in such notice (and any other governmental requirements or regulations) of the Registrable Securities that in all notices received by the Company has been so requested to register; provided, however, that (i) from other holders within 20 days after the Holders giving of such notice by the Company). If such method of disposition shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering, the holders of a majority of the Restricted Shares to be sold in such offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) underwriter of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringoffering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed delayed. The Company shall be obligated to register Restricted Shares pursuant to Section 1.02(a) on one occasion only and pursuant to Section 1.02(b), subject to Section 1.03(b), on one occasion only, provided, however, -------- ------- that such obligations shall be deemed satisfied only when a registration statement covering all Restricted Shares specified in notices received as aforesaid, for sale in accordance with the 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 become effective due to the withdrawal thereof by or on the request of the holders of 66-2/3% of the Restricted Shares to be registered or (ii) the Company shall (together with reason all Restricted Shares specified in notices pursuant to this Section 1.02 are not registered is due to a limitation on the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings registration of equity securities with shares by the managing underwriter(sunderwriter (which limitation shall be applied pro rata) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit no more than 50% of the underwriter(s) shall also be made to and for the benefit Restricted Shares so specified are not registered as a result of the Holders proposing to distribute their securities through limitation imposed by such managing underwriter or the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect voluntary withdrawal of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) shares from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required registration by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersholder thereof.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the The Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required entitled to include in such Underwritten Offering only that number any registration statement referred to in this Section 1.02, for sale in accordance with the method of Registrable Securities requested disposition specified by the Holders thereof requesting holders, Common Stock to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant Company for its own account, except as and to the Registration Statement, or (ii) ifextent that, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) opinion of the proviso to Section 4.2(amanaging underwriter (if such method of disposition shall be an underwritten public offering). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) , such inclusion would adversely affect the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement marketing of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue Restricted Shares to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)sold.
Appears in 1 contract
Sources: Disposition Agreement (Crown Castle International Corp)
Demand Registration. (a1) Subject to A Holder of Registrable Securities (the provisions hereof“Initiating Holder”) may, at any time on and from time to time, provided that: (a) EV Metals has subscribed for at least an aggregate of US$4,000,000 of Shares in connection with the Offering; and (b) at such time, such Holder, collectively with its Affiliates, beneficially owns or after the date that is 180 days after the Closing Date exercises control or direction over 5% or more of all outstanding Shares (as defined in the Merger Agreementand provided such beneficial ownership or control was obtained without contravening applicable Securities Laws), the Holders of a majority of Registrable Securities shall have the right to require the Company to file one or more Prospectuses and take such other steps as may be reasonably necessary to facilitate a Registration Statement registering secondary offering in Canada, except for sale the province of Quebec, of all or part any portion of their respective Registrable Securities under the Securities Act Shares held by such Initiating Holder (a the “Demand Registration”) ), by delivering a giving written request therefor notice of such Demand Registration to the Company. The Company (i) specifying shall, subject to applicable Securities Laws, use its commercially reasonable efforts to file one or more Prospectuses under applicable Securities Laws in order to permit the number Offering of all or any portion of the Initiating Holder’s Registrable Securities requested to be included in such registration by Demand Registration. The Parties shall cooperate in a timely manner in connection with such Holder or Holders, secondary offering and the procedures in Schedule “A” shall apply.
(ii2) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall not be obliged to effect:
a) more than two Demand Registrations by any Holder in any 12-month period;
b) a Demand Registration in the event the Company reasonably determines in good faith that (xi) promptly notify all Holders from whom either (A) the request for registration has not been received and (y) use reasonable best efforts effect of the filing of a Prospectus would impede the ability of the Company to effect such registration consummate a significant transaction (including, without limitation, appropriate a financing, an acquisition, a restructuring or a merger), (B) there exists at the time material non-public information relating to the Company the disclosure of which would be detrimental to the Company or the qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) sale of the Registrable Securities would require premature disclosure of material non-public information, or information which might reasonably be regarded as material non-public information that the Company has been so requested a bona fide business purpose for preserving as confidential or (C) if applicable, require the Company to registerprepare and file new technical reports under NI 43 101 - Standards of Disclosure for Mineral Projects of the Canadian Securities Administrators; providedand (ii) it is therefore in the best interests of the Company to defer the filing of a Prospectus at such time; in which case the Company’s obligations under this Section 3.1 shall: (1) in respect of (A) and (B) of this Section be deferred for a period of not more than 90 days from the date of receipt of the request of an Initiating Holder or (2) in respect of (C) of this Section be deferred until the earlier of (i) the date the Company files new technical reports, which the Company shall use its commercially reasonable efforts to complete as soon as practicable or (ii) the date the Company files its next annual information form pursuant to NI 51-102 – Continuous Disclosure Obligations, provided in each case, however, that (i) the Holders Company shall not make a request for a Demand Registration under this Section 4.2(agive written notice to the Holder (x) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000its determination to postpone filing of the Prospectus and, (ii) the Holders will not be entitled subject to require compliance by the Company with Securities Laws, of the facts giving rise to effect more than three (3) Demand Registrations in the aggregate under this Agreement, reason for the postponement and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(sy) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter time at which it determines the reason for postponement to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed no longer exist and (ii) the Company shall not qualify any securities offered by the Company for its own account during such period;
c) a Demand Registration in respect of a number of Shares less than 1,000,000;
d) a Demand Registration before the 90th day following the date on which a receipt was issued to the Company with respect to any Prospectus filed by the Company; or
e) a Demand Registration during a period of management-imposed blackout.
(together with 3) Any request by the Holders proposing Initiating Holder pursuant to distribute their securities through Section 3.1(1) hereof shall (a) specify the number of Shares which such underwritingInitiating Holder intends to offer and sell, (b) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings express the intention of equity securities with such Initiating Holder to offer or cause the managing underwriter(soffering of such Shares, (c) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially describe the form as set forth in Section 4.9 nature or methods of this Agreement; provided, that (i) the representations proposed offer and warranties by, sale thereof and the other agreements on provinces and territories of Canada in which such offer shall be made, (d) contain the part of, undertaking of such Initiating Holder to provide all such information regarding its holdings and the proposed manner of distribution thereof as may be required in order to permit the Company to comply with all applicable Securities Laws, and for (e) specify whether such Offering and sale shall be made by an Underwritten Offering.
(4) In the benefit case of an Underwritten Offering initiated pursuant to this Section 3.1, the underwriter(s) Initiating Holder shall have the right to select the managing underwriter or underwriters of such Registrable Securities, provided, however, that such selection shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished reasonably satisfactory to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementCompany. The Company shall not be obligated entitled to effect or participate (a) more than two (2) Underwritten Offerings retain counsel of its choice to assist it in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on fulfilling its own behalf or on behalf of the Holdersobligations under this Section 3.1.
(c5) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the The Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) have the Company will be obligated and required right to include in such Underwritten Offering only that number of any Demand Registration, Shares or other securities which are not Registrable Securities requested by the Holders thereof representing up to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis 15% of the number of Registrable Securities requested subject to be included therein by each such Holder. No shares Demand Registration, provided that, if the managing underwriter or underwriters impose a limitation on the number of Common Stock held by any Person Shares or on the number or kind of other than Registrable Securities held by the Holders shall securities which may be included in any such Offering because, in its or their reasonable judgment, such Registrable Securities may not be sold in an orderly manner within a Demand Registration without price range reasonably acceptable to the prior written consent Initiating Holder or marketing factors require the limitation of the holders number of securities which may be included in such Public Offering, such Offering shall be comprised of Shares selected according to the following priority:
a) first, the Registrable Securities offered by the Initiating Holder;
b) second, if there are additional securities which may be underwritten within a majority in interest price range reasonably acceptable to the Initiating Holder, considering marketing factors, without leading to undue repercussions on the Public Offering of the Registrable Securitiessecurities offered after taking into account the inclusion of all the securities required under paragraph (a) above, the securities the Company required to be included.
(d6) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in In the case of an Underwritten Offering, an Initiating Holder may participate in the negotiations of the terms of any underwriting agreement. An Initiating H▇▇▇▇▇’s participation in, and the Company’s completion of, the Underwritten Offering is conditional upon the Initiating Holder and the Company fails agreeing that the terms of any underwriting agreement are satisfactory to provide Full Cooperationthem, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)acting reasonably.
Appears in 1 contract
Sources: Investor Rights Agreement (International Battery Metals Ltd.)
Demand Registration. (a) Subject In the event that following the period the Holder is prohibited from selling the Registrable Securities by the provisions of the underwriting agreement relating to the provisions hereofInitial Public Offering, at any time on Holder or after the date that is 180 days after the Closing Date Holders (as defined in the Merger Agreement), the Holders of a majority i) desire to sell shares of Registrable Securities shall have owned by such Holder or Holders and (ii) an exemption from registration under the right Securities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), is not available to require enable the Holder or Holders to dispose of the number of shares of Registrable Securities it desires to sell at the time and in the manner it desires to do so, then upon the written request of any Holder or Holders requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated within 15 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementregistered; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect file a registration statement relating to any registration request under this
Section 2(a) (A) unless the aggregate requests by the Holder or participate Holders for such registration cover not less than 5.0% of the outstanding Common Stock, (aB) with respect to more than two an aggregate of 3 registrations (2which shall be increased to an unlimited number of registrations if such additional registrations are effected on Form S-3 or any successor similar short-form registration statement) Underwritten Offerings in under this Section 2(a), (C) within a period of 180 days after the effective date of any twelve other registration statement relating to any registration request under this Section 2(a), or (12D) month periodif with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and (b) in any Underwritten Offering during any lock-up period required by regulations thereunder, or the underwriter(s) in any prior underwritten offering form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company on at the end of its own behalf or on behalf fiscal year, in which case the filing may be delayed until the completion of such regular audit (unless the Holders requesting such registration agree to pay the expenses of the Holders.
(c) If, Company in connection with such an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person audit other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aregular audit).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after four (4) year anniversary of the Closing Date (as defined in the Merger Agreement)Effective Date, the Holders of a majority of Registrable Securities Investor shall have the right to require the Company to file a Registration Statement registering for the offer, sale and distribution of all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holdersregistration, (ii) specifying whether the intended method of disposition thereof is thereof, including whether pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder the Investor required to be included in such Registration Statement in accordance with applicable law. The date upon which the Investor delivers such request shall be referred to herein as a “Demand Date.” As soon as practicable after the receipt of such demandDemand Date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (iA) the Holders Investor shall not make a request for a Demand Registration under this Section 4.2(a) for unless the Registrable Securities having an anticipated requested to be so registered (i) would reasonably be expected to result in aggregate offering price gross cash sale proceeds in excess of less than $5,000,000, 20,000,000 (without regard to any underwriting discount or commission) or (ii) comprise at least 10% of the Holders Outstanding Securities prior to the applicable Demand Date, and (B) the Investor will not be entitled to require the Company to effect more than three five (35) Demand Registrations in the aggregate under this Agreement. Notwithstanding the foregoing, and the limitation set forth in proviso (iiiA) the Company above will not be obligated to effect more than one (1) apply so long as the Investor requests a Demand Registration in any six (6) month periodfor all of the Registrable Securities it holds at the time of the request.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company Company, with the written consent of the Investor (not to be unreasonably withheld) may designate the managing underwriter(s), investment banker(s) and manager(s) of the Underwritten Offering (including in any Shelf Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed ) and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwritingInvestor) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 2.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) Investor shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall not be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iiiii) the liability of each Holder the Investor in respect of any indemnification, contribution or other obligation of such Holder the Investor arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectusProspectus, final prospectusProspectus, summary prospectusProspectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder the Investor expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder the Investor (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder the Investor pursuant to such Underwritten Offering. No Holder The Investor may not participate in any such Underwritten Offering unless such Holder the Investor agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable good faith opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof Investor to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated Number pro rata among the Holders thereof holders of Registrable Securities that have requested to participate in such Demand Registration on the basis of the number percentage of the Registrable Securities requested to be included therein in such Registration Statement by each such Holderholders. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders Investor shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by (i) covers all Registrable Securities specified in the SECapplicable Demand Registration request for sale in accordance with the intended method or methods of distribution specified in such Demand Registration, subject to the underwriter cutbacks described in Section 2.1(c) (but only if the Underwriters’ Maximum Number represents at least 75% of the Registrable Securities requested to be included in the registration so specified), (ii) has been declared effective by the Holders are included in such registrationCommission, (iii) is maintained effective for the period required pursuant to this Agreement and (iv) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (iA) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (but only if such stop order, injunction or other order or requirement did not result from a statement or alleged statement in or omission or alleged omission from such Registration Statement, any preliminary Prospectus, final Prospectus or summary Prospectus contained therein, or any amendment or supplement thereto, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with information specifically furnished to the Company by the Investor for incorporation therein), and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders Investor pursuant to the Registration Statement, or (iiB) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (iiB) of the proviso to Section 4.2(a2.1(a). If (i) a registration requested pursuant to this Section 4.2 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 2.1 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders at least 75% of the Registrable Securities covered by such registrationthe effective Registration Statement have been sold, then such Demand Registration request shall not count as a Demand Registration request for the purposes of clause (B) of the proviso to Section 2.1(a) and the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d2.1(d), each Holder of Registrable Securities the Investor shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (iiB) of the proviso to Section 4.2(a2.1(a).
(e) The Investor shall be permitted to abandon or withdraw all or any part of their shares from a Demand Registration, in which event the Company shall abandon or withdraw such Registration Statement; provided, that such Demand Registration underlying such abandonment or withdrawal shall not be deemed to be a Demand Notice for purposes of clause (B) of the proviso to Section 2.1(a) if (a) such withdrawal or abandonment is requested prior to the filing of the applicable Registration Statement or in response to a material adverse change regarding the Company or a material adverse change in the financial markets generally or (b) the Investor reimburses the Company for the documented out-of-pocket Registration Expenses incurred by the Company in connection with such Demand Registration prior to the date of such abandonment or withdrawal.
Appears in 1 contract
Sources: Investor Rights Agreement (Sentio Healthcare Properties Inc)
Demand Registration. (a) Subject to At any time (i) upon the provisions written request of the Crest Group (the "Exclusive Demand Right") or, if a Qualified Public Offering shall not have occurred within four years of the date hereof, at upon the written request of Jack▇▇▇ ▇▇ any time on or after thereafter and (ii) following the date that is 180 days after earlier of (A) the Closing Date consummation of a registration of Registrable Securities in connection with the Exclusive Demand Right and (B) 6 months following the expiration of any lockup period imposed by the underwriter(s) in connection with a Qualified Public Offering, upon the written request of Jack▇▇▇, ▇▇ncBoston, the RTK Stockholder, the CRI Stockholder, the Telecrafter Stockholder, the TeleCore Stockholder, the Excalibur Stockholder, PNC or, following exercise of its warrants dated as defined in of September 7, 1999 and assuming it has not sold any of its shares of capital stock, GECC (each, with the Merger AgreementCrest Group, an "Initiating Holder"), the Holders Company shall use its best efforts to effect the registration of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective such Initiating Holder's Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written as described below. Such request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether shall state the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), by such holders of the Registrable Securities and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt Company will promptly give written notice of such demand, the requested registration to all holders of Registrable Securities. The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) will use reasonable its best efforts to effect such registration of (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsi) of the Registrable Securities that which the Company has been so requested to registerregister for disposition in accordance with the intended method of disposition stated in such request, and (ii) all other Registrable Securities the holders of which shall have, within 30 days after the receipt of such written notice from the Company, made written request (stating the intended method of disposition of such securities by such holders) to the Company for registration thereof, all to the extent required to permit the disposition (in accordance with the intended method thereof as aforesaid) by all such holders of the Registrable Securities so to be registered; provided, that, the RTK Stockholder, the CRI Stockholder, Jack▇▇▇, ▇▇ncBoston, the Telecrafter Stockholder, the TeleCore Stockholder, the Excalibur Stockholder, PNC and GECC shall be entitled to no more than one such demand request each; provided, further, that such Initiating Holder shall not be deemed to have made a demand request (including the Exclusive Demand Right) unless a registration statement shall have become effective with respect to at least 65% of the shares requested to be included therein by such Initiating Holder. The Company, after consultation with the holders requesting any registration pursuant to this paragraph, shall select the underwriter or underwriters of recognized standing to be used in connection with any public offering of securities registered pursuant to this paragraph; provided, however, that (i) the Holders so long as Crest Group shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled continue to require the Company to effect more than three (3) Demand Registrations hold in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect 5% or more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant total outstanding shares of Capital Stock, Crest Group shall have the right, in its sole discretion, to such Demand Registration may be in the form approve of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Companyany underwriter, which approval shall not be unreasonably withheld or delayed and withheld.
(iib) the Company shall (together with the Holders proposing If a requested registration pursuant to distribute their securities through such underwriting) enter into this Section 5.01 involves an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties byunderwritten offering, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) managing underwriter shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in writing (with a copy to each holder of Registrable Securities requesting registration) that, in its or their reasonable opinion opinion, the number of securities proposed requested to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to number which can be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).in
Appears in 1 contract
Sources: Stockholders Agreement (Viasource Communications Inc)
Demand Registration. (a) Subject to If the provisions hereofCompany shall receive a written request from any DLJ Funds (or, at any time on or after one occasion under the date that is 180 days after the Closing Date (as defined in the Merger Agreement)circumstances set forth herein, the Holders of a majority of Registrable Securities shall have DLJIP Funds) (such requesting person, the right to require "REQUESTING SHAREHOLDER") that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) of all or any portion of such Requesting Shareholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give notice of such requested registration (xeach such request shall be referred to herein as a "DEMAND REGISTRATION") promptly notify all Holders from whom at least 15 Business Days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the other Shareholders and (y) thereupon shall use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Shareholders have requested registration under this Section 5.01, and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholders that any other governmental requirements or regulationsShareholders with rights to request registration under Section 5.02 (all such Shareholders, together with the Requesting Shareholders, the "REGISTERING SHAREHOLDERS") have requested the Company to register by request received by the Company within ten Business Days after such Shareholders receive the Company's notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten OfferingPROVIDED that, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 5.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Shareholders in such Demand Registration are at least (A) $50,000,000 if such Demand Registration would constitute the Initial Public Offering, or (B) $25,000,000 in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten Business Day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders 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 Shareholders may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, PROVIDED that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than 66-2/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Shareholders that, in its view, the number of Company Securities that the Registering Shareholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the "MAXIMUM OFFERING SIZE"), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Requesting Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw included in such registration by each), and
(ii) second, all or any part of its Registrable Securities from proposed to be registered by the Company or requested to be included in such registration by any other Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Company and such other Registering Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each).
(f) The DLJIP Funds shall only be entitled to one Demand Registration, which cannot be the Initial Public Offering. The DLJIP Funds shall not be required to exercise their Warrants as a prerequisite to making a Demand Registration at any time prior REQUEST to the commencement of marketing of Company, but the DLJIP Funds shall only be entitled to have the Company register Common Shares and not Warrants. Notwithstanding anything to the contrary in this Agreement, the DLJIP Funds shall not be entitled, in connection with such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) to have officers of the proviso to Section 4.2(a)Company prepare and make presentations at any "road shows" or before any analysts or rating agencies.
Appears in 1 contract
Sources: Shareholder Agreement (Advanstar Communications Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after first anniversary of the Closing Date consummation of the Merger, the Holder(s) of Shares representing a "Majority" (as defined in the Merger Agreementhereinafter defined), the Holders of a majority of Registrable Securities such securities shall have the right (which right is in addition to require the Piggyback Registration rights provided for under Section 1 hereof), exercisable by written notice to the Company, which may be given ten (10) months from the date hereof (a "Demand Registration Request"), to have the Company prepare and file with the Commission, at the sole expense of the Company (except as hereinafter provided), in respect of up to file the aggregate number of Shares held by the Holders having an aggregate value based upon the average bid and ask price for the five (5) trading days proceeding the effective date of the registration statement equal to $2,500,000 (the "Demand Shares"), a Registration Statement registering for so as to permit a public offering and sale all of the Demand Shares; provided however, that the Company is then eligible to register the Demand Shares on Form S-3 (or part successor form) and, if the Holder intends to distribute the Demand Shares by means of their respective Registrable Securities under an underwriting, then the Securities Act (a “Holder shall so notify the Company in the Demand Registration”) Registration Request. The underwriter shall be selected by delivering a written request therefor the Holder and be reasonably acceptable to the Company. The Company (i) specifying and other stockholders may, at the number Company's sole discretion, have other shares of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be Company's common stock included in such Registration Statement Statement, provided that in accordance with applicable lawthe event that an underwriter requires a limitation in the total number of shares in the offering for marketing purposes, then only the shares of the Company proposed to be offered by the Company and such other stockholders shall be cutback, and the Holder's Demand Shares shall not be subject to such cut-back. As soon as practicable after the receipt For purposes of such demandthis Agreement, the Company term "Majority" in reference to the Holders shall mean in excess of sixty-five percent (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations65%) of the Registrable Securities then outstanding Shares held by Holders that have not been resold to the Company has been so requested public pursuant to register; provided, however, that (i) a registration statement filed with the Holders shall not make a request for a Demand Registration Commission under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodAct.
(b) The offering Company will use reasonable efforts to file the Registration Statement as expeditiously as reasonably possible, but in no event later than 60 days following receipt of the Registrable Securities pursuant to such Demand Registration may be Request; provided that nothing herein shall require the Company to undergo an audit, other than in the form ordinary course of an underwritten public offering business; and provided further that no Registration Statement shall become effective before the one (an “Underwritten Offering”)1) year anniversary of the consummation of the Merger. In connection with any underwritten Demand Registration Request and subject to Section 3(c) hereof, the Company will enter into any underwriting agreement reasonably necessary to effect such caseoffering, provided such underwriting agreement (i) is with an underwriter selected by the Holder and reasonably acceptable to the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an contains customary underwriting agreement in customary form provisions for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersselling stockholders.
(c) IfNotwithstanding any provision of this Section 2 to the contrary, in connection with an Underwritten Offeringif, at the time a Demand Registration Request is given to the Company under Section 2 hereof, the managing underwriter(s) advise Company is negotiating a merger, consolidation, acquisition or sale of all or substantially all of its assets or a similar transaction and if in the Company that in its opinion of counsel to the Company, the Registration Statement would be required to include information concerning such transactions or their reasonable opinion the number of securities proposed to be included in such registration exceeds parties thereto which is not reasonably available at the Underwriters’ Maximum Numbertime, then (i) the Company shall so advise all Holders promptly inform the holders of Registrable Securities the Demand Shares by written notice of such circumstances (a "Postponement Notice") and, at the Company's election to be included set forth in such Underwritten Offering the Postponement Notice, the filing of the Registration Statement may be postponed for one (and (iinot more than one) period not to exceed 180 days from the date on which the Demand Registration Request is given to the Company will be obligated and required under this Section 2 (notwithstanding any provisions herein to include the contrary); provided that in the event of such Underwritten Offering only that number postponement, the Holder may withdraw the Demand Registration Request during the 90 day period following the date on which the Notice of Registrable Securities requested Postponement was given by the Holders thereof Company, and thereafter the Holder will continue to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities entitled to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested Request pursuant to this Section 4.2 is deemed not to have been effected 2 until such time as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or no longer possesses any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Shares.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereofconditions of this Section 2.2, if the Company shall receive at any time on a written request from any UniPhy Preferred Shareholders or after the date that is 180 days after the Closing Date ARC Key Shareholders (as defined in the Merger Agreement)for purposes of this Section 2.2, the Holders "Demand Registration Investors") holding ten percent (10%) or more of a majority of the Registrable Securities shall have then outstanding which are held by the right to require Demand Registration Investors (the "Initiating Investors") that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (a “Demand Registration”) by delivering a written request therefor to covering the Company (i) specifying the number registration of Registrable Securities having an aggregate offering price to be included in the public of not less than $1,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such registration by such Holder or Holders, (ii) specifying whether request to all of the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)Demand Registration Investors, and (iii) containing all information about such Holder required subject to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt limitations of such demandthis Section 2.2, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as soon as practicable, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the all Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under Investors (for purposes of this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002.2, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) "Demand Registration in any six (6Investors") month periodrequest to be registered.
(b) The offering of If the Initiating Investors 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 and the Company shall include such Demand Registration may be information in the form of an underwritten public offering (an “Underwritten Offering”written notice referred to in Section 2.2(a). In such caseevent, the right of any Demand Registration Investor to include his Registrable Securities in such registration shall be conditioned upon such Demand Registration Investor's participation in such underwriting and the inclusion of such Demand Registration Investor's Registrable Securities in the underwriting (i) the Company may designate the managing underwriter(s) unless otherwise mutually agreed by a majority in interest of the Underwritten Offering, provided that Initiating Investors and such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject Demand Registration Investor) to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders extent provided herein. All Demand Registration Investors proposing to distribute their securities through such underwriting) underwriting shall enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Investors (which underwriter or underwriters shall be reasonably acceptable to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 Company). Notwithstanding any other provision of this Agreement; providedSection 2.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (iincluding Registrable Securities) then the representations and warranties byCompany shall so advise all Demand Registration Investors holding Registrable Securities which would otherwise be underwritten pursuant hereto, and the other agreements number of shares that may be included in the underwriting shall be allocated to the Demand Registration Investors on a pro rata basis based on the part of, number of Registrable Securities held by all such Demand Registration Investors (including the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder Initiating Investors). Any Registrable Securities excluded or withdrawn from such underwriting shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) withdrawn from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. registration.
(c) The Company shall not be obligated required to effect or participate a registration pursuant to this Section 2.2 with respect to the Registrable Securities:
(ai) more than prior to an Initial Offering; or
(ii) after the Company has effected two (2) Underwritten Offerings registration pursuant to this Section 2.2.
(d) The Company shall not be required to effect a registration pursuant to this Section 2.2 with respect to any Registrable Securities:
(i) if within thirty (30) days of receipt of a written request from Initiating Investors pursuant to Section 2.2(a), the Company gives notice to the Demand Registration Investors of the Company's intention to make its Initial Offering within ninety (90) days; or
(ii) if the Company shall furnish to Demand Registration Investors requesting a registration statement pursuant to this Section 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its 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 more than ninety (90) days after receipt of the request of the Initiating Investors; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date (as defined in initial public offering of the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right Company’s Common Stock pursuant to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities an effective registration under the Securities Act (a the “Demand RegistrationIPO”) by delivering a written request therefor to ), the Company (i) specifying the number holders of Registrable Securities may notify the Company that they intend to offer or cause to be offered for public sale all or any portion of their Registrable Securities in the manner specified in such request. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Investors holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for registration has not been received written notice and (y) use reasonable best efforts in such event the right of any Person to effect participate in such registration shall be conditioned upon such Person’s participation in such underwritten public offering and the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. If, following such notice to Investors, the holders of at least thirty-three percent (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations33%) of the Registrable Securities that (or a lesser percent if the anticipated aggregate offering price, net of Registration Expenses and Selling Expenses, would exceed $10 million) request to participate in such registration under the Securities Act within the thirty (30) day period described above, the Company has been so requested will use its reasonable best efforts to registerexpeditiously effect the registration of all Registrable Securities whose holders request to participate in such registration under the Securities Act, but only to the extent provided for in this Agreement; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) registration pursuant to a request under this Section 2 more than two (2) Underwritten Offerings times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 (12or have waived their right to join) month periodand in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating shareholders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numberstatement and, such if necessary, and (iii) Registrable Securities to be allocated pro rata among the Holders thereof on the basis Securities. If there is a reduction of the number of Registrable Securities requested pursuant to clause (iii), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registration, and offering (which approval will not be unreasonably withheld or delayed). 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 or a transaction to which Rule 145 of the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has Securities Act is applicable) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 1 contract
Sources: Registration Rights Agreement (Angion Biomedica Corp.)
Demand Registration. The Company, upon written demand (aa “Demand Notice”) Subject to of the provisions hereof, Holder(s) of at any time on or after least 51% of the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of total Registrable Securities shall have the right underlying all outstanding Purchase Options (“Majority Holders”) agrees to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act register (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and on no more than two occasions, all or any other governmental requirements or regulationsportion of the Registrable Securities so long as such registration is with respect to at least thirty-three percent (33%) of the Registrable Securities (or a lesser percent if the anticipated aggregate offering price, net of selling expenses, would exceed $5 million). For the avoidance of doubt, in the event that more than one Purchase Option is issued as compensation to an underwriter of the Company has been so requested in the Offering, a Demand Registration may be made only upon written demand of the Holders of at least 51% of the total Registrable Securities underlying all outstanding Purchase Options. On such occasion, the Company will file a registration statement covering the Registrable Securities within sixty (60) days after receipt of a Demand Notice and use its commercially reasonable efforts to registerhave such registration statement declared effective promptly thereafter, subject to compliance with review by the Commission; provided, however, that the Company shall not be required to comply with a Demand Notice if the Company has filed a registration statement or in the Company’s good faith estimate it plans to file a registration statement within sixty (60) days following such demand with respect to which the Holder is entitled to piggy-back registration rights pursuant to Section 5.2 hereof and either: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Holder was or will be given the opportunity to exercise its piggy-back registration rights with respect to all of the underlying Registrable Securities having an anticipated aggregate under Section 5.2 hereof in connection with the offering price of less than $5,000,000, covered by such registration statement or (ii) the Holders will not be entitled if such registration statement relates to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The an underwritten primary offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval securities of the Company, which approval shall until the offering covered by such registration statement has been withdrawn or until thirty (30) days after such offering is consummated; provided further that the Company may be permitted to defer taking action with respect to filing a registration statement for a period of not more than ninety (90) days after the date of the Demand Notice if the Company’s board of directors determines in its good faith judgment that it would be unreasonably withheld materially detrimental to the Company and its stockholders for such registration statement to either become effective or delayed and 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 shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form has a bona fide business purpose for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form preserving as set forth in Section 4.9 of this Agreementconfidential; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) render the liability Company unable to comply with requirements under the Securities Act or Exchange Act. The Company covenants and agrees to give written notice of each Holder in respect its receipt of any indemnification, contribution or Demand Notice by any Holder(s) to all other obligation registered Holders of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out any portion of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made this Purchase Option issued in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity connection with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of Offering and/or the Registrable Securities disposed thereunder within ten (10) days from the date of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms receipt of such underwriting agreementDemand Notice. The Company Holders of this Purchase Option issued in connection with the Offering shall not be obligated to not, in the aggregate, effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed Demand Registrations pursuant to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holderthis Section 5.1. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected count as a Demand Registration unless until the registration statement filed with the Commission with respect to such Demand Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in with all material respects with of its obligations under this Agreement hereunder with respect theretothereto unless the Majority Holders withdraw their request for such registration and elect not to pay the registration expenses therefor that were incurred by the Company; provided, however, that if, after it such registration statement has become been declared effective, (i) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder pursuant to a Demand Registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement injunction of the SEC Commission or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringcourt, the Company fails registration statement with respect to provide Full Cooperation, then such registration Demand Registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If declared effective, unless and until, (i) a registration requested pursuant to this Section 4.2 such stop order or injunction is deemed not to have been effected as a Demand Registration removed, rescinded or otherwise terminated, and (ii) the registration requested Majority Holders thereafter elect to continue the offering. The Company shall bear all fees and expenses attendant to the first Demand Registration pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after 5.1, including the commencement reasonable and documented expenses of the distribution a single legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities covered by such registrationin an amount not to exceed $50,000, then but the Company Holders shall continue pay any and all underwriting commissions or brokerage fees related to be obligated the Registrable Securities, if applicable. The fees and expenses attendant to effect a an additional Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities 5.1 shall be permitted voluntarily borne by the Holder(s). The Company agrees to withdraw all or use its commercially reasonable efforts to cause the filing required herein to become effective promptly. The Company shall use its commercially reasonable efforts to cause any part of its Registrable Securities from registration statement filed pursuant to a Demand Registration to remain effective for a period of at any time prior to least six (6) consecutive months from the commencement of marketing effective date of such Demand Registrationregistration statement or, if earlier, until the distribution contemplated in the registration statement has been completed. The Holders shall only use the prospectuses provided by the Company to sell the shares covered by such registration statements, and will immediately cease to use any prospectus furnished by the Company if the Company advises the Holder that such registration nonetheless shall count as prospectus may no longer be used due to a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)material misstatement or omission.
Appears in 1 contract
Demand Registration. (a) Subject Except as provided in Section 2.2(b) below, upon the written request of the Holder, which request shall specify the Registerable Securities so requested to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)be registered by Holder, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether Proposed Amount thereof and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandby Holder, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) will, as expeditiously as reasonably possible, use reasonable its best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that resale of the Company has been so requested to registerProposed Amount of Registerable Securities, for disposition in accordance with the intended method of disposition stated in such request; provided, however, however that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations if in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering good faith judgment of the Registrable Securities pursuant to such Demand Registration may be in the form Board of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval Directors of the Company, which approval shall not such registration would be unreasonably withheld or delayed detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (ii) the Company shall (together with furnish to the Holders proposing Holder a certificate signed by an executive officer of the Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to distribute their securities through defer the filing of such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with registration statement, then the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement Company shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; providedright to defer such filing for the period during which such registration would be detrimental, provided that (i) the representations and warranties by, and the other agreements on the part of, the Company to and may not defer the filing for the benefit a period of more than 120 days after receipt of the underwriter(s) shall also be made to and for the benefit request of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementHolder. The Company shall not be obligated entitled to effect or participate (a) more than two (2) Underwritten Offerings include in any twelve registration statement filed pursuant to this Section 2.2: (12A) month periodsecurities of the Company held by any other security holder of the Company, and (bB) in any Underwritten Offering during any lock-up period required by an underwritten public offering, securities of the underwriter(s) in any prior underwritten offering conducted Company to be sold by the Company on for its own behalf or on behalf account, except as and to the extent that (x) in the opinion of the Holders.
managing underwriter (c) Ifif such method of disposition shall be an underwritten public offering), in connection with an Underwritten Offering, such inclusion would adversely affect the managing underwriter(s) advise marketing of the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Registerable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested sold by the Holders thereof to be included Holder or (y) in the reasonable opinion of the Holder (if such registration that does method of disposition is not exceed such Underwriters’ Maximum Numberan underwritten public offering), such Registrable inclusion would adversely affect the price at which such Registerable Securities may be sold pursuant to be allocated pro rata among the Holders thereof on the basis plan of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretodistribution; provided, however, that if, after such registration statement has been filed, the managing underwriter believes that the inclusion of all securities requested to be included in the proposed underwritten public offering would adversely affect the marketing of the Registerable Securities or, in the case of a distribution that is not an underwritten public offering, if the Holder reasonably believes that the inclusion of all securities requested to be included in such registration statement would adversely affect the price at which the Registerable Securities may be sold pursuant to the plan of distribution, then the aggregate amount of securities to be offered by the Company and such other security holders of the Company shall be reduced so as to permit the offering of all Registerable Securities requested by the Holder without such adverse effects.
(b) The Company shall not be obligated to take any action to effect any registration requested by the Holder pursuant to Section 2.2(a) hereof (i) after the Company has effected two (2) such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, (ii) for a period of two (2) years after the Company has effected one such registration pursuant to Section 2.2(a) hereof and such registration has been declared or ordered effective, such two year period to commence on the date the registration statement was declared or ordered effective or (iii) at any time after the second anniversary of the expiration date of the Warrant.
(c) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto by reason of the refusal of Holder to proceed shall be deemed to have been effected by the Company unless the Holder shall have elected to pay all Company Registration Expenses in connection with such registration, (iii) if after it has become effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, court for any reason other than a misrepresentation or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered an omission by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration StatementHolder, or (iiiii) if, if the conditions to closing specified in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied other than by reason of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration some wrongful act or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution omission, or act or omission in bad faith, by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (General Electric Capital Corp)
Demand Registration. (a) Subject to The Company shall, upon the provisions hereof, written demand of the Buyer at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority acquisition of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or HoldersSecurities, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued the "Demand Registration") under the Securities Act and any other governmental requirements or regulations) of the such number of Registrable Securities that held by the Buyer as shall be indicated in a written demand sent to the Company has been so requested to registerby the Buyer; provided, however, that the Company shall not be required to effect a Demand Registration if counsel for the Company reasonably acceptable to the Buyer shall deliver to the Buyer an opinion reasonably acceptable to counsel for the Buyer that, pursuant to Rule 144 under the Securities Act or otherwise, the Buyer can sell Registrable Securities proposed to be included in the Demand Registration without registration under the Act, without limitation as to the number of Registrable Securities that are proposed to be sold by the Buyer. The Company shall pay all expenses in connection with a Demand Registration. Upon receipt of the Buyer's written demand, the Company shall expeditiously (ibut in any event within 90 days) file a registration statement under the Act for the Registrable Securities and use its best efforts to have such registration statement declared effective as soon as practicable after the filing thereof; provided that (A) the Holders Company shall not make be required to cause any special audit to be undertaken in connection with any such registration and (B) the Company shall not be required to file any registration statement during any period of time (not exceeding 90 days) when (I) the Company is contemplating a request public offering of its securities and, in the judgment of the managing underwriter thereof (or the Company, if such offering is not underwritten) such filing would have a material adverse effect on the contemplated offering, (II) the Company is in possession of material information that it deems advisable not to disclose in a registration statement or (III) the Company is engaged in any program for the repurchase of voting securities of the Company. The Buyer shall have the right to select the underwriters for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten OfferingRegistration, subject to the approval of the Company, which approval shall will not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderswithheld.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Stock Purchase and Registration Rights Agreement (Group Technologies Corp)
Demand Registration. (a) Subject to 2.1 If the provisions hereofCompany shall be requested in writing by an Apollo Holder, or by Holders who beneficially own at any time on or after the date that is 180 days after the Closing Date least 1,000,000 Registrable Shares (as defined in the Merger Agreementappropriately adjusted for any stock split, combination, reorganization, recapitalization, reclassification, stock dividend, stock distribution or similar event), the Holders of to effect a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act of Registrable Shares in accordance with this Section 2, then the Company shall promptly give written notice of such proposed registration to each Holder and shall offer to include (a “Demand Registration”) by delivering a written request therefor subject to the Company terms of this Agreement) in such proposed registration any Registrable Shares requested to be included in such proposed registration by such holders who respond in writing to the Company's notice within 15 days after delivery of such notice (i) specifying which response shall specify the number of Registrable Securities Shares proposed to be included in such registration by such Holder or Holders, (ii) specifying whether and the intended method of disposition thereof is distribution, which may be pursuant to an Underwritten Offering (as defined belowa shelf registration), and (iii) containing all information about such Holder required . Such written registration request shall specify the approximate number of Registrable Shares requested to be included in registered and the anticipated per share price range for such Registration Statement in accordance with applicable lawoffering. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such registration (including, without limitation, on an appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued form under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that Shares which the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any registration under the Securities Act except in accordance with the following provisions:
(a) the Company shall not be obligated to file more than two (2i) Underwritten Offerings three registration statements in any twelve total pursuant to this Section 2 plus (12ii) month periodone additional registration statement registering all Registrable Shares then owned by the Apollo Holders, and subject to Section 2.3;
(b) in the Company shall not be obligated to file or cause to be declared effective any Underwritten Offering registration statement during any lock-up period required by in which (i) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the underwriter(sSecurities Act or any successor forms thereto) in any 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 underwritten offering conducted by 180 days, provided, that the Company shall use reasonable efforts to achieve a shorter period or to have such restrictions released in less than 180 days or (ii) the Company has determined in good faith that the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, such filing to be delayed until the date which is 90 days after such request for registration pursuant to this Section 2; provided, that the Company may only so delay the filing or effectiveness of a registration statement pursuant to this Section 2.1(b)(ii) on its own behalf or on behalf of the Holders.one occasion during any twelve month period; and
(c) If, in connection with an Underwritten Offeringrespect to the registration pursuant to this Section 2, the Company may include in such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter(s) advise underwriter advises the Company in writing that in its or their reasonable opinion the number inclusion of securities all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration exceeds would adversely affect the Underwriters’ Maximum Numbersuccessful marketing (including pricing) of all such securities, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof Shares, Primary Shares and Other Shares proposed to be included in such registration that does not exceed such Underwriters’ Maximum Numbershall be included in the following order:
(i) First, such the Registrable Securities to be allocated Shares held by all Selling Investors, pro rata among the Holders thereof on the basis of based upon the number of Registrable Securities requested to be included therein Shares owned by each such Holder. No shares Selling Investor at the time of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or ;
(ii) if, in the case of an Underwritten OfferingSecond, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).Primary Shares; and
Appears in 1 contract
Sources: Registration Rights Agreement (Skyterra Communications Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders The Rightholders of a majority of all Registrable Securities Securities, voting as a single class, shall have the right right, exercisable by giving written notice to the Company, to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act to register the offer and sale of all or any portion of such holders’ (in either case, the “Rightholders”) Registrable Securities in the Company (in either case, a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, ; provided that the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts be obligated to effect such a registration pursuant to this Section 2.1(a) (including, without limitation, appropriate qualification under applicable blue sky other than a registration on Form S-3 or other state securities laws any successor form from and appropriate compliance with applicable regulations issued under after the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that time the Company has been so requested is eligible to register; provideduse Form S-3 or any successor form, howeveras applicable, that (i) as to which the Holders Rightholders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled have unlimited rights to require the Company to effect a registration) on more than three (3) Demand Registrations in occasions. In the aggregate under this Agreementevent of such a demand, and (iii) the Company will not be obligated to effect more than one shall, within twenty (120) Demand Registration in any six (6) month period.
(b) The offering days of the Registrable Securities pursuant receipt thereof, give written notice of such request to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”)all other Rightholders. In the event that any such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter Rightholders wish to participate in the Underwritten Offeringregistration (the “Opt-in Shareholders”), subject they shall so advise the Company within twenty (20) days of receipt of such notice and shall include in their notice the number of Registrable Securities they desire to so register. Notwithstanding any other provision of this section, if the managing underwriter determines that marketing factors require a limitation on the number of shares to be underwritten, then the Company shall so advise the Opt-in Shareholders which would otherwise be underwritten pursuant to this provision, and the number of shares that may be included in the underwriting shall be allocated to the Opt-in Shareholders in proportion, as nearly as practicable, to the respective amounts of Common Shares held by such Opt-in Shareholders at the time of filing the registration statement.; provided, further, that the number of shares owned by the Rightholders to be included in such underwriting and registration shall not be reduced unless all other securities held by other shareholders of the Company are first entirely excluded from the underwriting and registration. The managing underwriter(s) for such offering shall be selected by the Company with the prior written approval of the CompanyRightholders holding a majority of the Common Shares held by Rightholders to be offered for sale pursuant to the Demand Registration, which approval shall not be unreasonably withheld or delayed and (ii) withheld. In the event the Company shall has not selected an underwriter approved by such Rightholders within thirty (together with 30) days of the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofRightholders’ notice, the Company to and for the benefit Rightholders holding a majority of the underwriter(s) shall also Common Shares held by Rightholders to be made to and offered for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished sale pursuant to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to Demand Registration may select the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementunderwriter. The Company shall not be obligated deemed to effect or participate (ahave effected a Demand Registration pursuant to this Section 2.1(a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by unless the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company Rightholders shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only have sold that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, representing at least 75% fifty percent (50%) of the Registrable Securities requested to be included registered by the Rightholders.
(b) The Company may postpone for up to 120 days the filing or effectiveness of a registration statement with respect to a Demand Registration if the Company furnishes to Rightholders 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 by statement to be filed during the Holders are included period of such postponement for one or more of the following reasons: (i) the filing of such registration statement during such period would materially interfere with an acquisition, corporate reorganization or other transaction that the Company would disclose in a periodic report filed pursuant to the Securities Exchange Act; (ii) the filing of such registrationregistration statement during such period would require disclosure of material, and non-public information relating to the Company which the Company has complied a bona fide business purpose for preserving as confidential; or (iii) the filing of such registration statement during such period would result in all material respects the Company’s inability to comply with its obligations under this Agreement with respect theretoapplicable requirements of the Securities Act; and it is therefore necessary to defer the filing of such registration statement for such period; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution Company may not invoke this right more than once in any 12-month period. In the event of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringpostponement, the Company fails Rightholders shall be entitled to provide Full Cooperationwithdraw such request and if withdrawn, then such registration will Demand Registration shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Restricted Term, the Holders Investor and any Permitted Transferee of the Investor (each a “Holder”) holding, collectively, a majority of the Registrable Securities then outstanding shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Shares held by or issuable to them (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering (as defined belowOffering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerregister as soon as practicable (and in any case by the applicable Filing Date); provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a2.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the 25,000,000. The Holders will not shall be entitled to require the Company to effect more than three two (32) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The If the offering of the Registrable Securities pursuant to such Demand Registration may be in the form of is an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate shall select the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the CompanyHolders of a majority of the Registrable Securities to be sold in the Underwritten Offering, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed delayed, and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectusProspectus, final prospectusProspectus, summary prospectusProspectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion of the number of securities proposed to be included in which such registration exceeds should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that registration (a) first, the number of Registrable Securities securities requested to be included therein by holder(s) of Company securities having contractual rights to include Company securities in such registration (including, for the avoidance of doubt, the rights provided under the Investors’ Rights Agreement, dated as of August 14, 2015, by and between the Company and the investors party thereto (the “Prior Rights Holders”)) with priority over the Holders thereof with respect to such registration, and (b) second, the number of securities requested to be included in such registration that does not exceed such Underwriters’ Maximum Number, such by all Holders of Registrable Securities to be allocated included in such Underwritten Offering, pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in , and on a Demand Registration without the prior written consent of pari passu basis with the holders of a majority in interest contractual registration rights provided under the Share Purchase Agreement by and between the Company and C.P. Pharmaceuticals International C.V. dated as of May 6, 2016 (the Registrable Securities“Pfizer Holders”).
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least seventy five percent (75% %) of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement and is not cured within forty five (45) days thereof, and (ii) in each case less than all seventy five percent (75%) of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a). If (i) a registration requested pursuant to this Section 4.2 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 2.1 does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d2.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at i. At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)and from time to time, the Holders BDI may make a written demand for one underwritten registration of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective its Registrable Securities under the Securities Act (any such registration, a “Demand Registration” and the registration statement relating thereto, a “Demand Registration Statement”). Any demand for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. The Issuer will notify all other Investors who are holders of Registrable Securities of the demand, and each such other Investor who wishes to include all or a portion of such Investor’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration, a “Demanding Holder”) shall so notify the Issuer within fifteen (15) days after the receipt by delivering such holder of the notice from the Issuer. Upon any such request, the Issuer will use its reasonable best efforts to effect, as promptly as practicable, the registration under the Securities Act of the Registrable Securities which the Issuer has been so requested to register, subject to Sections 2(a) (iii), 3(a)(iv), 3(a)(v) and 6(c). All Demanding Holders proposing to distribute their securities through such underwriting shall complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements (with the Underwriter or Underwriters selected for such underwriting by the Issuer (in the case of an offering in which the Issuer does not intend to offer any of its capital stock for sale, with the consent of BDI, such consent not to be unreasonably withheld)) and other documents reasonably required under the terms of the applicable underwriting arrangements and shall take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities included in such underwriting.
ii. A registration will count as a written Demand Registration if (A) the Registration Statement is filed with the Commission with respect to such Demand Registration and has been declared effective, (B) the Registration Statement is withdrawn after filing at the request therefor of a majority-in-interest of the Demanding Holders or (C) the Registration Statement is withdrawn prior to filing at the Company request of majority-in-interest of the Demanding Holders and the Demanding Holders fail to reimburse the Issuer for the Registration Expenses incurred by the Issuer in connection therewith within 30 days of receipt of a reasonably detailed invoice therefor; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) specifying such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that the Issuer shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.
iii. If in the sole discretion of the managing Underwriter or Underwriters the registration of all, or part of, the Registrable Securities which BDI and any other Investors requested to be included would adversely affect such public offering, then the Issuer shall be required to include in the underwriting only that number of Registrable Securities, if any, which the managing Underwriter or Underwriters believe may be sold without causing such adverse effect. If the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement underwriting in accordance with applicable lawthe foregoing is less than the total number of shares which BDI and such other Investors have requested to be included, then BDI and such other Investors shall participate in the underwriting pro rata based upon their total ownership of Registrable Securities. As soon Any such limitation shall be imposed in such manner so as practicable after to avoid any diminution in the receipt number of such demandshares the Issuer may register for sale by giving first priority for the shares to be registered for issuance and sale by the Issuer and the Underwriter, and by giving second priority for the Company shall (x) promptly notify all Holders from whom shares to be registered for sale by BDI and the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) Investors.
iv. If BDI disapproves of the terms of any underwriting or is not entitled to include all of its Registrable Securities that in such underwritten offering, BDI may elect to withdraw from such offering by giving written notice to the Company has been so requested Issuer and the Underwriter or Underwriters of its request to register; provided, however, that (i) withdraw prior to the Holders shall not make filing of the Registration Statement. If BDI withdraws from a request for proposed offering relating to a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will because it is not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering include all of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by due to the Company on its own behalf or on behalf inclusion of securities to be sold for the account of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full CooperationIssuer, then such registration will be deemed shall not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected count as a Demand Registration or (ii) the registration requested pursuant Registration. No other withdrawal by an Investor from a proposed offering relating to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that cause such registration nonetheless shall not to count as a Demand Registration except for purposes a Registration Statement that is withdrawn prior to filing at the request of clause (ii) majority-in-interest of the proviso Demanding Holders and as to Section 4.2(a)which the Demanding Holders reimburse the Issuer for the Registration Expenses incurred by the Issuer in connection therewith within 30 days of receipt of a reasonably detailed invoice therefore.
Appears in 1 contract
Sources: Registration Rights Agreement (Comstock Homebuilding Companies, Inc.)
Demand Registration. (ai) Subject to the provisions hereof, at At any time on or after the date that is 180 and from time to time commencing one hundred and eighty (180) days after the Closing Date consummation of an Initial Public Offering upon written notice to the Corporation (as defined in a “Demand Notice”) delivered by a Qualified Holder or Qualified Holders requesting that the Merger Agreement), Corporation effect the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act registration (a “Demand Registration”) by delivering under the Securities Act (other than pursuant to a written request therefor to Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Company (iSecurities Act) specifying of any or all of the number of Registrable Securities to be included in such registration held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowQualified Holder(s), and the Corporation shall promptly (iiibut in any event, not later than five (5) containing all information about Business Days following the Corporation’s receipt of such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after Demand Notice) give written notice of the receipt of such demandDemand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Corporation shall use its commercially reasonable efforts to, within forty-five (45) days following the receipt of such Demand 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 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 Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act 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 registered by the Qualified Holder(s) that the Corporation has been requested to register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Corporation within twenty (20) days following the receipt of the Corporation’s written notice of the receipt of the Demand Notice and (C) any other governmental requirements or regulationsRegistrable Securities to be offered and sold by the Corporation, in each case subject to Section 6(a)(iv), all to the extent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities that the Company has been to be so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under registered. Notwithstanding anything in this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0006 to the contrary, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will Corporation shall not be obligated to (I) effect more than one (1) Demand Registration Registrations in any six (66)-month period, (II) month period.
(b) The offering of the Registrable Securities pursuant to such effect any Demand Registration may be in the form of an underwritten public offering within ninety (an “Underwritten Offering”). In such case, (i90) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) days from the disposition date of the Registrable Securities disposed effectiveness of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
Statement or (dIII) A registration will not be deemed to have been effected as comply with a Demand Registration unless Notice to the Registration Statement relating thereto extent the Corporation has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has already complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, five (i5) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities Demand Notices pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)terms hereof.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver by the underwriters of the lock-up provisions in the Merger IPO Underwriting Agreement), the any Holder or Holders shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that in the aggregate equals or is greater than the Minimum Registration Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister by the Holder or Holders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering; providedand
(ii) all other Ordinary Shares that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, however, that but subject to Section 4.1(f).
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the Company will not be obligated to effect more than one identity of the Holder (1) Demand Registration in any six (6) month periodor Holders).
(bc) The offering Each Holder shall be entitled to an unlimited number of Demand Registrations until such time as the Holders, together, Beneficially Own less than the Minimum Registration Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the requesting Holder whose shares represent a majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf which all of the Holders.
Holders were given the opportunity to exercise “piggyback” rights pursuant to Section 4.2 (csubject to Section 4.1(f) If, in connection with an Underwritten Offering, and provided that at least 50% of the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the such Holders thereof to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.1(a) and Section 4.3(f). In addition, the Company shall be entitled to postpone (upon written notice to all Holders) for a reasonable period of time not to exceed 45 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any twelve-month period) if the Board determines in good faith and in its reasonable judgment that does the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of (i) material, non-public information that the Company has a bona fide business purpose for preserving as confidential, (ii) a significant business opportunity (including a potential acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, share exchange, tender offer or other similar transaction) available to the Company which the Board reasonably determines to be significantly disadvantageous for the Company to disclose or (iii) any other event or condition of similar significance to the Company that the Board reasonably determines to be significantly disadvantageous for the Company to disclose and which the Company is not exceed otherwise required to disclose at such Underwriters’ Maximum Numbertime (each of the conditions in (i), (ii) and (iii), a “Disadvantageous Condition”), and the Company shall furnish to the Initial Shareholder a notice stating that the Company is deferring such registration pursuant to this Section 4.1(e) and an approximation of the anticipated duration of the delay. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration due to a Disadvantageous Condition, the Holder(s) shall have the right to withdraw such Demand in accordance with Section 4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of the Holders participating in such Demand Registration that hold a majority of the Registrable Securities included in 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 Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis 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) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Holders, which, in the opinion of the underwriter, can be sold without adversely affecting the marketability of the offering pro rata among such Holder. No shares Holders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person other than Registrable Securities held by such Holders; and (ii) second, securities the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany proposes to sell.
(dg) A registration Any investment bank(s) that will not be deemed serve as an underwriter with respect to have been effected as a such Demand Registration unless the or, if such Demand Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, the Company fails to provide Full Cooperationany investment bank engaged in connection therewith, then such registration will shall be deemed not to have been effected for purposes selected by Holders holding a plurality of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the all Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Demand.
Appears in 1 contract
Sources: Shareholders Agreement (Hanson Building Products LTD)
Demand Registration. (a) Subject to the provisions hereofSection 10(d), at any time on or after the date that is 180 days after from the Closing Date effective date of an Initial Public Offering (or such lesser period of time as defined agreed between the managing Underwriter in such Initial Public Offering and the Merger AgreementCompany), the Holders any one or more of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Odyssey Holders, (ii) the ▇▇▇▇ Holders, (iii) PF Telecom or a group of other PF Telecom Holders which certifies that it represents not less than 25% of the Securities then held by the PF Telecom Holders or (iv) UBS Capital, may make a written request (any such requesting Person or a group of Persons, as the case may be, a "DEMAND SELLER") that the Company effect the registration under the Securities Act of such Demand Seller's Registrable Securities, and specifying whether the intended method of disposition thereof is thereof. The Company will promptly give written notice of such requested registration (a "DEMAND REGISTRATION") at least 25 business days prior to the anticipated filing date of the registration statement relating to such Demand Registration to all other holders of Registrable Securities (whether or not pursuant to an Underwritten Offering this Agreement) who have incidental or piggy-back registration rights (each such holder having such rights is hereinafter referred to as defined belowa "HOLDER" and collectively as the "HOLDERS"), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities then held by the Demand Sellers that the Company has been so requested to registerregister by the Demand Sellers; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) the Holders will not be entitled subject to require Section 10(c), all other Registrable Securities that any other Holder has requested the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by written request received by the Company will not within 15 business days after the receipt by each such Holders of such written notice given by the Company; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be obligated to effect more than one (1) Demand Registration in any six (6) month periodregistered.
(b) The offering of the Registrable Securities pursuant to such Company will pay all Registration Expenses in connection with any Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”)Registration. In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Each Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) responsible for the liability of each Holder in respect payment of any indemnification, contribution discounts and/or commissions of underwriters or other obligation placement agents in connection with resales of such Holder arising under such underwriting agreement (a) shall be limited its shares of Common Stock subject to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such any Demand Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersthis Section 10.
(c) If, in connection with If a Demand Registration involves an Underwritten Offering, underwritten Public Offering and the managing underwriter(s) Underwriter shall advise the Company that and the Demand Sellers that, in its or their reasonable opinion view, the number of securities proposed shares of Common Stock requested to be included in such registration, including shares of Registrable Securities requested to be included by Holders in such registration and Common Stock which the Company proposes to be included which are not Registrable Securities, exceeds the largest number of shares of Common Stock which can be sold without having a substantial adverse effect on such offering, including, without limitation, the price at which such shares of Common Stock can be sold (the "MAXIMUM OFFERING SIZE"), the Company will include in such registration, in the priorities listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof Demand Sellers and all Registrable Securities, if any, to be included in such registration that does by the Holders (allocated if necessary for the Public Offering not to exceed such Underwriters’ the Maximum NumberOffering Size, such Registrable Securities to be allocated pro rata among the Demand Sellers and the Holders thereof on the basis of the relative number of Registrable Securities requested to be included therein in such registration by each such Holder. No shares of the Demand Sellers and the Holders); and
(ii) second, any Common Stock held by any Person other than Registrable Securities held proposed to be registered by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany.
(d) A registration will not be deemed to have been effected as a Demand Registration unless Notwithstanding the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringforegoing, the Company fails to provide Full Cooperation, then such registration will be deemed shall not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to take any action to effect a any Demand Registration pursuant to this Section 4.2 of 10: (i) if the Registrable Securities included Demand Seller is any Odyssey Holder and the Company has previously effected two (2) Demand Registrations in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all which one or any part of its Registrable Securities from a more Odyssey Holders were Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).Sellers;
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Demand Registration. From and after the earlier of (ax) Subject to the provisions hereof, at any time on or date that is one calendar year after the date hereof, (y) the occurrence of a Seller Breach, and (z) the date that is 180 days the Purchaser no longer owns 5% of the outstanding Common Stock, in each case after receipt of a written request from the Closing Date Holders owning 50% of the Registrable Securities of each class requesting that the Company effect the registration of all or a portion of the Registrable Securities and specifying the intended method or methods of disposition thereof (as defined in the Merger Agreementa "Holder Notice"), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holdersshall, (ii) specifying whether the intended method of disposition thereof as expeditiously as is pursuant to an Underwritten Offering (as defined below)possible, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued for sale under the Securities Act and any other governmental requirements or regulations) of the all shares of Registrable Securities that which the Company has been so requested to registerregister by such Holders, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of such Registrable Securities so registered; provided, however, that (i) the Holders Company shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one (1) Demand Registration in registration of any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may this Section 2(a) except as otherwise expressly provided herein. Notwithstanding any provision of this Agreement to the contrary, however, the rights granted to the Purchaser and the Holders pursuant to this Agreement including, without limitation, this Section 2(a), shall be in irrevocably terminated upon the form occurrence of an underwritten a Purchaser Breach. 5 If the managing underwriter of a proposed public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in writing that, in its or their reasonable opinion opinion, the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Holders are included in Company or such registration, other registering security holders would materially and adversely affect the distribution of such securities by the Company has complied in or such registering security holders, then the Company may require all material respects with its obligations under this Agreement with respect theretoselling security holders (other than the Company) to reduce the amount of securities each intended to distribute through such offering on a pro rata basis; provided, however, that ifif the Company requires such reduction, and if Holders requesting such registration pursuant to this Section 2(a) are unable to include in such registration Registable Securities that they requested be included in such registration in the related Holder Notice that constitute Substantial Market Value Securities, due to such pro rata reduction (the Registrable Securities that such Holder so requested to be included in such registration that were not included in such registration due to such pro rata reduction being referred to herein as the "Reduction Shares", and the registration in which such reduction occurred being referred to herein as a "Failed Registration"), then subject to the other provisions hereof applicable to a demand registration the Holders of the Reduction Shares shall have the right, exercisable commencing on the day that is two calendar months after it has become effectivethe termination of the Registration Period relating to the Failed Registration by written notice sent to the Company by Holders of 50% of the Reduction Shares (a "Repurchase/Register Notice"), to require the Company to elect (at the Company's option) to either register the Reduction Shares otherwise pursuant to this Section 2(a) or, if the foregoing offer to sell or resulting sale is then lawful, to repurchase the Reduction Shares at the higher of (i) such Registration Statement or the related offer, sale or distribution of price per share for which Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are were actually sold by in the selling Holder or Holders pursuant to the Registration StatementFailed Registration, or (ii) if, in the case of an Underwritten Offering, Market Price on the date the Repurchase/Register Notice is sent to the Company fails to provide Full Cooperationin compliance with this Agreement; provided, then such registration will however, that the Holders shall not be deemed not hereby or thereby to have been effected for purposes of clause (ii) of made any offer to sell to the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 Company that does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then comply with applicable law and the Company shall continue not be entitled or deemed to be obligated entitled to effect repurchase such Reduction Shares or to be offered the right to or solicit the right to repurchase such Reduction Shares or deemed to have bid for such Reduction Shares hereby or thereby if such repurchase, offer, or bid would violate any applicable securities law; and provided further, however, that any such repurchase shall otherwise comply with the procedures applicable to the Company's right to repurchase securities upon the occurrence of a Demand Registration pursuant to this Section 4.2 Purchaser Breach set forth in Article VIII of the Registrable Securities included in Stock Purchase Agreement, to the extent that such registrationprocedures do not conflict with the provisions hereof, without requirement for the occurrence of a Purchaser Breach. In circumstances The Company shall respond to such Repurchase/Register Notice by written notice to the Purchaser within 30 business days after its receipt of the Repurchase/ Register Notice (an "Election Notice"), which Election Notice shall set forth whether the Company desires to so register such Reduction Shares or to repurchase such Reduction Shares; provided, however, that the Company shall be deemed to have elected to register such Reduction Shares if it does not including give such notice within such 30 business day period. If the events described Company so elects to repurchase such Reduction Shares, and if the Market Price requires an agreement of the Company and such holders as to the fair market value of such Reduction Shares, the consummation of such repurchase shall not be required to be consummated until as 6 soon as practicable after such fair market value has been determined as set forth in the immediately two preceding sentences definition of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Market Price set forth herein.
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Sources: Registration Rights Agreement (Crown Northcorp Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.. Table of Contents
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been Table of Contents effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (ai) Subject to the provisions hereof[***], at Purchaser and any time on or after the date that is 180 days after the Closing Date permitted transferee of Purchaser (as defined in the Merger Agreement), the Holders of each a majority of Registrable Securities “Holder”) [***] shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Shares held by or issuable to them (excluding Shares then subject to the lock-up restrictions) (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering (as defined belowOffering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, [***].
(ii) If the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of is an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate shall select the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the CompanyHolders of a majority of the Registrable Securities to be sold in the Underwritten Offering, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed delayed, and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(ciii) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion of the number of securities proposed to be included in which such registration exceeds should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities[***].
(div) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included [***] in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement [***], and (ii) in each case less than all of the Registrable Securities covered [***] by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a6(a)(i). If (i) a registration requested pursuant to this Section 4.2 6(a) is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 6(a) does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 6(a) of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d6(a)(iv), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a6(a)(i).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities request from a Shareholder (the “Requesting Shareholder”) that the Company effect the registration under the Securities Act of all or any portion of such Requesting Shareholder’s Registrable Securities, and specifying the intended method of disposition thereof (including whether the offering is an underwritten offering), then the Company shall promptly give notice of such requested registration (each such request, a “Demand Registration”) by delivering a written request therefor prior to the Company (i) specifying effective date of the number of registration statement relating to such Demand Registration to the other Shareholders holding Registrable Securities and thereupon shall use commercially reasonable efforts to be included in such registration by such Holder or Holderseffect, (ii) specifying whether the intended method of disposition thereof is pursuant as expeditiously as possible, subject to an Underwritten Offering (as defined belowSection 2.1(e), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and of:
(i) all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.1, and
(ii) all other Registrable Securities that any other governmental requirements or regulationsShareholder has requested the Company to register by written request received by the Company within 10 Business Days after such Shareholder receives 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 that so to be registered; provided that, subject to Section 2.1(d), the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one two Demand Registrations for each of (1A) Demand Registration in any six Trident and its Affiliates, (6) month period.
(bB) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering Chubb Corporation and its Affiliates and (an “Underwritten Offering”). In such case, (iC) the Company may designate Founding Investors and their Affiliates; provided further that the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included in such Demand Registration equal or exceed $25,000,000; and provided further that a Shareholder’s right to include its Registrable Securities in a Demand Registration will be conditioned upon the timely provision by such Shareholder of such information as the Company may reasonably request relating to the disclosure requirements of Item 507 of Regulation S-K (or any similar disclosure requirement applicable to such Demand Registration). In no event shall the Company be required to effect more than one Demand Registration hereunder within any four-month period.
(b) Promptly after the expiration of the 10-Business Day-period referred to in Section 2.1(a)(ii), the Company will notify all Participating Shareholders of the identities of the other Participating Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration by the Holders are included in statement relating to such registration, and the Requesting Shareholder may revoke such request, without liability to any of the other Participating Shareholders, by providing a notice to the Company has complied in all material respects with its obligations under this Agreement with respect thereto; providedrevoking such request. A request, howeverso revoked, that if, after it has become effective, 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 Statement Expenses in connection with such revoked request) or (ii) the related offerRequesting Shareholder reimburses the Company for all Registration Expenses in connection with such revoked request. The Company agrees to use commercially reasonable efforts to notify the Participating Shareholders if the price for any Company Securities to be registered for sale for the account of the Company is expected to occur outside of any expected pricing range disclosed to the Participating Shareholders; provided that the Company shall not have any such obligation with respect to any registration involving the registration of Company Securities only for the account of parties other than the Company.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, sale regardless of whether such Registration is effected, except as set forth in Section 2.1(b)(ii) and Section 3.2(b).
(d) 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 180 days (or distribution of such shorter period in which all Registrable Securities of the Participating Shareholders included in such registration have actually been sold thereunder or cease to be Registrable Securities), except that such period shall be increased by the amount of time any Shareholder is or becomes the subject required to discontinue disposition of such Registrable Securities as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt; provided, or that in no circumstance will such period extend beyond the date that Registrable Securities covered included in such registration cease to be Registrable Securities; or
(ii) if any court prevents or otherwise limits the sale Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 75% of the Registrable Securities pursuant of the Requesting Shareholder sought to be included in such registration are included.
(e) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder 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 “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the registrationMaximum Offering Size:
(i) first, and in each case less than all Registrable Securities requested to be registered by the Participating Shareholders (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 covered owned by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration StatementParticipating Shareholders), or and
(ii) ifsecond, in any other securities proposed to be registered by the case Company or any securities proposed to be registered for the account of an Underwritten Offeringany other Persons (including the Company), with such priorities among them as the Company shall determine.
(f) Upon notice to the Requesting Shareholder, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) may postpone effecting a registration requested pursuant to this Section 4.2 is deemed 2.1 on one or more occasions during any period of six consecutive months for a reasonable time specified in the notice but not to have exceeding 90 days in the aggregate (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and the Requesting Shareholder in writing that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which had then been effected as a Demand Registration commenced or (ii) the registration requested pursuant to this Section 4.2 does Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company reasonably believes would not remain continuously effective until forty-five (45) days after be in the commencement best interests of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Sources: Agreement and Plan of Amalgamation (Max Capital Group Ltd.)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders first anniversary of a majority of Registrable Securities shall have the right to require Qualified IPO, if the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities written request by a Holder (such requesting Holder, a "Selling Stockholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Stockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a “"Demand Registration”") by delivering a written request therefor at least 20 days prior to the Company anticipated filing date of the registration statement relating to such Demand Registration to all other Holders (the "Other Stockholders") and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) specifying the number Registrable Securities which the Company has been so requested to register by the Selling Stockholder; and
(ii) all other Registrable Securities which the Other Stockholders have requested the Company to register by written request received by the Company within 10 days after the receipt by the Other Stockholders of the written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 2.01(d) hereof, the Company shall not be obligated to effect more than two Demand Registrations for Urvanos and its Permitted Transferees and no more than six Demand Registrations for Urpasis and its Permitted Transferees; provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities to be included in such registration by such Holder Demand Registration, in the reasonable opinion of the Board, equals or Holdersexceeds $50,000,000; and provided further that the Company shall not, (ii) specifying whether the intended method of disposition thereof is in any event, be required to effect more than one Demand Registration pursuant to an Underwritten Offering (as defined below), and (iiithis Section 2.01(a) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawwithin any twelve month period. As soon as practicable after the receipt of such demandIn addition, the Company shall have the right to preempt any Demand Registration with a primary registration by delivering written notice (x) promptly notify all Holders within 10 days after the Company has received from whom the Selling Stockholder a request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsDemand Registration) of such intention to the Registrable Securities Selling Stockholder indicating that the Company has been so requested identified a specific business need and use for the proceeds of the sale of such securities and the Company shall use all commercially reasonable efforts to register; providedeffect a primary registration within 120 days of such notice. In the ensuing primary registration, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will have such incidental registration rights as are set forth in Section 2.02 hereof. Upon the Company's preemption of a requested Demand Registration, such requested registration will not count as a Demand Registration. The Company shall not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under exercise this Agreement, and (iii) the Company will not be obligated to effect right of preemption more than one (1) Demand Registration time in any six (6) 12-month period. Notwithstanding the foregoing, in connection with any Demand Registration, Holders shall not be permitted to request that a registration statement be filed pursuant to Rule 415 (a "Shelf Registration Statement").
(b) The offering Selling Stockholders requesting a registration under this Section may, at any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration (or, at any time prior to the date of any Shelf Takedown if a Shelf Registration Statement has been filed and declared effective (as such terms are defined below)), revoke such request, without liability to any Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration may be in unless the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) Selling Stockholders reimburse the Company may designate for all Registration Expenses incurred by the managing underwriter(s) Company in connection with such registration, or unless such revocation arose out of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval fault of the Company, in which approval case such request shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in considered a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) IfSubject to Section 2.01(b) above, the Company will pay all Registration Expenses in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistration.
(d) A registration will Demand Registration requested pursuant to this Section shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, at least 75% of Securities Act and (B) has remained effective until such time as the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Section becomes effective such registration statement is interfered with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits such a Demand Registration shall not be deemed to have been effected.
(e) If the sale managing underwriter of an offering advises the Company that, in its view, the number of Registrable Securities pursuant requested to be included in a registration effected under this Section 2.01 (including any securities which the Company proposes to be included which are not Registrable Securities) exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringpriority listed below, up to the Company fails Maximum Offering Size:
(A) first, all Registrable Securities requested to provide Full Cooperation, then be included in such registration will be deemed by the Selling Stockholder and the Other Stockholders (allocated, if necessary for the offering not to have been effected for purposes of clause (ii) exceed the Maximum Offering Size, pro rata among such Selling Stockholder and such Other Stockholders on the basis of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement relative number of the distribution by the Holders shares of the Registrable Securities covered by such registration, then the Company shall continue requested to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) At any time on or after the first anniversary of a Qualified IPO, the Company may, in its sole discretion, file with the SEC a Shelf Registration Statement with respect to Registrable Securities then outstanding. After a Shelf Registration Statement has been filed, but before it has been declared effective by the SEC, Holders may not request a Demand Registration. After a Shelf Registration Statement has been declared effective by the SEC, a Holder may no longer exercise Demand Registrations for the purpose of effecting a registration, however, a Holder may exercise any Demand Registrations remaining under Section 2.01(a) to effect takedowns from such Shelf Registration Statement (a "Shelf Takedown"). In circumstances not including the events described in the immediately two preceding sentences connection with a demand relating to a Shelf Takedown, all other provisions of this Section 4.2(d), each Holder of Registrable Securities Agreement shall be permitted voluntarily continue to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)apply.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering shall receive from Initiating Holders a written request therefor to that the Company effect any registration with respect to all or at least 50% in the aggregate of the issued and outstanding Registrable Securities held by Initiating Holders, the Company shall:
(i) specifying promptly give written notice of the number of Registrable Securities proposed registration to be included in such registration by such Holder or all other Holders, ; and
(ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration register (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act execution of an undertaking to file post-effective amendments and any other governmental requirements or regulationsrequirements) of the all Registrable Securities that which the Company has been so requested Holders request to registerbe registered; provided, however, that the Company shall not be obligated to file a registration statement pursuant to this Section 2:
(iA) prior to September 31, 2007;
(B) within 120 days following the effective date of any registered offering of the Company’s securities to the general public in which the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for of Registrable Securities shall have been able effectively to register all Registrable Securities as to which registration shall have been requested;
(C) in any registration having an anticipated aggregate offering price (before deduction of underwriting discounts and expenses of sale) of less than $5,000,0001,000,000; or
(D) after the Company has effected one such registration pursuant to this Section 2 and such registration has been declared or ordered effective, and the full number of Registrable Securities for which registration has been requested have been included in the registration. Subject to the foregoing clauses (iiA) through (D), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable, but in any event within ninety (90) days after receipt of the request or requests of the Initiating Holders will and shall use reasonable best efforts to have such registration statement promptly declared effective by the Commission; provided, however, that if the Company shall furnish to such Holders a certificate signed by the Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors, with advice of counsel, it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed within such ninety-day (90-day) period and it is therefore essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the expiration of the initial ninety-day (90-day) period within which to file such registration statement; provided, that during such time the Company may not file a registration statement for securities to be issued and sold for its own or anyone else’s account; and further provided, that during such deferment, the Initiating Holders may elect not to pursue such registration request, in which event, upon giving notice to the Company of such decision prior to the declaration of effectiveness of any such registration statement, the Initiating Holders shall not be entitled deemed to require have availed themselves of the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month perioddemand registration right herein provided for.
(b) The offering of If the Initiating Holders intend to distribute the Registrable Securities pursuant to covered by their request by means of an underwriting, they shall so advise the Company as a part of their request. In such Demand Registration may be event, the Company shall include such information in the form of an underwritten public offering (an “Underwritten Offering”written notice referred to in Section 2(a)(i). In either such caseevent, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate if so requested in the Underwritten Offering, subject to the approval of writing by the Company, which approval the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to registration pursuant to Section 2 shall be unreasonably withheld or delayed and (ii) the conditioned upon such Holder’s participation in such underwriting. The Company shall (together with the all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through underwriter or underwriters selected for such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 underwriting. Notwithstanding any other provision of this AgreementSection 2, if the managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, the Company shall so advise all Holders, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders thereof in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders; provided, however, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds statement as a result of piggyback registration rights as well as any securities to be offered by the Underwriters’ Maximum NumberCompany, then (i) its officers and employees shall be excluded from the Company shall so advise all Holders registration statement prior to the exclusion of any Registrable Securities held by the Holders. If any Holder disapproves of the terms of the underwriting, such Holder may elect to be included in withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. If, by the withdrawal of such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that Registrable Securities, a greater number of Registrable Securities requested held by the other Holders thereof to may be included in such registration that does not exceed such Underwriters’ Maximum Number, such (up to the limit imposed by the underwriters) the Company shall offer to all Holders who have included Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration the right to include additional Registrable Securities in the same proportion used in determining the limitation as set forth above. Any Registrable Securities which are excluded from the underwriting by reason of the Holders are included in underwriter’s marketing limitation or withdrawn from such underwriting shall be withdrawn from such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject At any time following the expiration of the Relevant Restricted Period, if the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 4.1 hereof, subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined restrictions set forth in the Merger Agreement)Section 3.2, the Holders of a majority of Registrable Securities Investors’ Representative shall have the right right, by delivering a written notice to the Company (a “Demand Notice”), to require the Company to file a Registration Statement registering for sale all or part register under and in accordance with the provisions of their respective Registrable Securities under the Securities Act the number of Registrable Securities Beneficially Owned by any Investors and requested by such Demand Notice to be so registered (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders Company shall not make a request for be required to effect a Demand Registration under pursuant to this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000after the Company has effected two (2) Demand Registrations pursuant to this Section 4.2(a); and provided, (ii) further, that the Holders will Investors shall not be entitled to require deliver to the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) 12-month period.
(b) The offering period and, in any event, a Demand Notice may only be made if the sale of the Registrable Securities pursuant requested to such be registered by the Investors’ Representative includes at least 25% of the shares of Company Common Stock into which the originally issued shares of the Preferred Stock (which, for the avoidance of doubt, shall include all of the shares of Preferred Stock that were issued to each of the Investors and MSD under the Purchase Agreements) may be converted or is reasonably expected to result in aggregate gross cash proceeds in excess of $50,000,000 (without regard to any underwriting discount or commission). For all purposes under this Section 4.2(a), any Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished delivered to the Company by MSD under the MSD Stockholder Agreement shall be considered to be a Demand Registration delivered under this Section 4.2(a) and a Joint Demand Registration shall be deemed to be a single Demand Registration under this Section 4.2(a). A Demand Notice shall also specify the expected method or on behalf methods of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the applicable Registrable Securities disposed Securities. Following receipt of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on a Demand Notice, the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall use commercially reasonable efforts to file, as promptly as reasonably practicable, but not be obligated to effect or participate (a) more later than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted 30 days after receipt by the Company on its own behalf or on behalf of such Demand Notice, a Registration Statement relating to the offer and sale of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each the Investors thereof in accordance with the methods of distribution elected by such Holder. No shares Investors (a “Demand Registration Statement”) and shall use commercially reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) If any of Common Stock held by any Person other than the Registrable Securities held registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Investors in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the Holders total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Investors, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Investor; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(c) In the event of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold.
(d) The Investors’ Representative (or in the case of a Joint Demand Registration, the Joint Representative) shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration without or a Joint Demand Registration, as the case may be, be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement or Joint Demand Registration; provided, however, that the Company shall not be required to pay for expenses of any registration proceeding begun pursuant to Section 4.2(a) hereof, which has been subsequently withdrawn pursuant to this Section 4.2(d) at the request of the Investors’ Representative (or in the case of a Joint Demand Registration, the Joint Representative), and shall be reimbursed by the Investors (or in the event of a Joint Demand Registration by each of the Investors and MSD on a pro rata basis) whose Registrable Securities were intended to be included in the Demand Registration Statement or Joint Demand Registration for reasonable and documented out-of-pocket expenses (including legal fees and printing expenses) so incurred, unless the withdrawal is based upon material adverse information concerning the Company that the Company had not publicly disclosed at least two (2) Business Days prior to the Company’s receipt of such Demand Notice.
(e) Subject to Section 4.4, with the prior written consent of the holders of a majority in interest of the Registrable Securities.
Investors’ Representative (d) A registration will which consent shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECunreasonably withheld, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement conditioned or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringdelayed), the Company fails shall be entitled to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to coordinate any offerings under this Section 4.2 is deemed not with any offerings to have been be effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after similar agreements with the commencement holders of the distribution Other Securities, including, if practicable, by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand filing one Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw Statement for all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Other Securities.
Appears in 1 contract
Sources: Stockholders Agreement (Phillips Van Heusen Corp /De/)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days earlier of (i) five (5) years after the Closing Date and (as defined in ii) one hundred eighty (180) days after the Merger Agreement)effective date of the registration statement for an IPO, the Holders upon receipt of a majority of Registrable Securities shall have the right to require written request from any Designated Holder, requesting that the Company to file effect a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act registration (a “Demand Registration”) by delivering under the Securities Act (including without limitation, registration on Form F-1 or Form S-1, or (if the Company so qualifies) registration on Form F-3 or Form S-3) covering at least forty percent (40%) and up to all of the Registrable Securities and specifying the intended method or methods of disposition thereof, the Company shall (x) within ten (10) days after receipt of a written request therefor for a Demand Registration, give written notice thereof (the “Demand Notice”) to the Company (i) specifying the number all other holders of Registrable Securities other than the Designated Holder, and (y) as expeditiously as reasonably possible, but in any event no later than one hundred and eighty (180) days to the extent possible (excluding any days which occur during a permitted Exempted Period under paragraph 3 below) after receipt of a written request for a Demand Registration, file with the SEC and use its best efforts to cause to be declared effective a registration statement (a “Demand Registration Statement”) relating to all shares of Registrable Securities which the Company has been so requested to register by such Designated Holder for sale, together with any additional Registrable Securities requested to be included in such registration by any other holders of Registrable Securities (each, a “Participating Demand Holder”), as specified by notice given by each such Participating Demand Holder or Holdersto the Company within twenty (20) days of the date the Demand Notice is given (but subject to paragraphs 1(b) and 2(c) below), to the extent required to permit the disposition (ii) specifying whether in accordance with the intended method or methods thereof, as aforesaid) of disposition thereof is pursuant the Registrable Securities so registered.
(b) The public offering shall be underwritten with a managing underwriter selected by the Company and reasonably satisfactory to an Underwritten Offering the Participating Demand Holders holding a majority in interest of the Registrable Securities (as defined below)the “Managing Underwriter”) (provided that the Participating Demand Holders shall not unreasonably refuse the selection of the Company) and if such Managing Underwriter of such Demand Registration advises the Company in writing that, and (iii) containing all information about such Holder required in its opinion, the number of Securities to be included in such Registration Statement in accordance with applicable law. As soon as practicable after offering is greater than the receipt total number of Securities which can be sold therein without having a material adverse effect on the distribution of such demandsecurities or otherwise having a material adverse effect on the marketability thereof (the “Maximum Number of Securities”), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder). If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect may include in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and Demand Registration any other governmental requirements Securities of the Company and other Securities held by other security holders of the Company, as the Company may in its discretion determine or regulationsbe obligated to allow, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities. However, in no event shall the Company include, in the applicable offering (other than an IPO), less than thirty percent (30%) of aggregate number of the Registrable Securities that the Company Designated Holder has been so requested to register; providedbe registered. To facilitate the allocation of shares in accordance with the above provisions, howeverthe Company or the underwriters may round the number of shares allocated to any Participating Demand Holder to the nearest one hundred (100) shares. For purposes of this paragraph 1, that (i) the Holders a registration shall not make be counted as “effected” if, as a request for a Demand Registration under this Section 4.2(aresult of an exercise of the Managing Underwriter’s cutback provisions in paragraph 1(b), fewer than fifty percent (50%) for of the total number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the that Designated Holders will not have requested to be entitled to require the Company to effect more than three (3) Demand Registrations included in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodsuch registration statement are actually included.
(bc) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect effect, or participate (a) more than two (2) Underwritten Offerings in to take any twelve (12) month periodaction to effect, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) Ifregistration pursuant to this paragraph 1, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (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 shall so advise all Holders of Registrable Securities is actively employing in good faith commercially reasonable efforts to be included in cause such Underwritten Offering and registration statement to become effective; (ii) after the Company will be obligated and required has effected three (3) registrations pursuant to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holderthis paragraph 1. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will shall not be deemed to have been effected counted as a Demand Registration unless “effected” for purposes of this paragraph 1(c) until such time as the Registration Statement relating thereto applicable registration statement has been declared effective by the SEC.
(d) Notwithstanding anything to the contrary, at least 75% of the Registrable Securities requested Form F-3 or Form S-3 registrations shall not be deemed to be included in demand registrations on Form F-1 and Form S-1. Except as otherwise provided herein, there shall be no limit on the number of times the Designated Holders may request registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is on Form F-3 or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, Form S-3; provided that such registration nonetheless the Designated Holders shall count as not request for more than twice within a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Financial Year.
Appears in 1 contract
Sources: Series a Preferred Stock Subscription Agreement (I-Mab)
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on during such periods as are provided for in the Lock-Up Agreement or after as are agreed by the date Issuer (the "Demand Request") requesting that is 180 the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare and, within 30 days after such request, file with the Closing Date (as defined in the Merger Agreement), the Holders of Commission a majority of registration statement with respect to such Registrable Securities shall have the right and thereafter use its commercially reasonable efforts to require the Company cause such registration statement to file a Registration Statement registering for sale all or part of their respective Registrable Securities be declared effective under the Securities 1933 Act (a “Demand Registration”) by delivering a written request therefor for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the Company contrary:
(i) specifying the Holders may collectively exercise their rights to request registration under this Section 2.01(a) on not more than two occasions (each such registration being referred to herein as a "Demand Registration");
(ii) the Issuer shall not be required to effect the Demand Registration hereunder unless the aggregate number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled is equal to require the Company to effect or more than three (3) Demand Registrations in the aggregate under this Agreement, and 1,000,000 shares;
(iii) the Company will method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be obligated required to effect more than one (1) any Demand Registration in any six (6) month periodhereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) The offering Notwithstanding any other provision of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject this Agreement to the approval of the Companycontrary, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested by Holders pursuant to this Section 2.01 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECeffected, at least 75% of the Registrable Securities and, therefore, not requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effectiverights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, (i) if such Demand Registration Statement has not become effective under the 1933 Act or (ii) if such Demand Registration, after it became effective under the related offer1933 Act, sale or distribution of Registrable Securities thereunder is or becomes was not maintained effective under the subject 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Holders within the periods referred to in Section 2.01(a), the Holders shall not lose their right to their Demand Registration under Section 2.01 if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer (but not for the account of stockholders other than Holders) in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if any court prevents such Holders are advised in writing (with a copy to the Issuer) by the lead or otherwise limits managing underwriter referred to in Section 2.03(b) that, in such underwriter's good faith view, the number of shares of such Registrable Securities and additional equity securities exceeds the largest number of shares that can be sold in such registration without having an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated (or that the inclusion of shares for the account of the Issuer would, in such underwriter's good faith view, have such an adverse effect), then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering (the "Maximum Offering Size") shall be allocated in the following priority:
(i) first, so much of the Issuer Securities proposed to be registered for the account of the Holders as would not cause the offering to exceed the Maximum Offering Size (to be allocated among such Holders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each); and
(ii) second, all Registrable Securities requested to be included in such registration for the account of the Issuer; provided that the Issuer may not include securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any equity securities be included by the registrationIssuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, and in the Issuer shall provide a written notice to each case less than Holder, advising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 7 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 2.01(d), elect to so include Registrable Securities in the Demand Registration by written notice to such effect to the Issuer specifying the number of Registrable Securities desired to be so included by such Holder.
(e) If the Issuer invokes a Market Interfering Delay during the Subsequent Period, the Issuer shall give prompt notice at least 30 days prior to the anticipated filing date of the registration statement relating to the registration which is deemed the subject of such Market Interfering Delay, to each Holder, which notice shall set forth such Holder's rights under this Section 2.01(e) and shall offer such Holder the opportunity to include in such registration statement such number of Registrable Securities as the Holders so desire hut not to have been effected as a Demand Registration or exceed up to 50% of the Registrable Securities then held by all such Holders. Upon the request of any such Holder made within 20 days after the receipt of notice from the Issuer (ii) which request shall specify the number of Registrable Securities intended to be registered by such Holder), the Issuer shall use its commercially reasonable efforts to effect the registration under the 1933 Act of all Registrable Securities that the Issuer has been so requested to register by all such Holders, to the extent requisite to permit the disposition of the Registrable Securities so to be registered, provided that if, at any time after giving notice of its intention to register any Issuer Securities pursuant to this Section 4.2 does not remain continuously 2.01(e) and prior to the effective until forty-five (45) days after the commencement date of the distribution by the Holders of the Registrable Securities covered by registration statement filed in connection with such registration, then the Company Issuer shall continue determine for any reason not to register the securities to be obligated offered by Issuer, the Issuer shall terminate the Market Interfering Delay and shall give notice to effect a Demand Registration pursuant all such Holders and, thereupon, shall be relieved of its obligation to this Section 4.2 of the register any Registrable Securities included in connection with such registration. In circumstances not including the events described in the immediately two preceding sentences of No registration effected under this Section 4.2(d)2.01(e) shall relieve the Issuer of its obligations to effect any Demand Registration to the extent required by this Agreement. The Issuer shall pay all Registration Expenses in connection with such registration during the Subsequent Period. Notwithstanding the foregoing, each Holder the Issuer shall not be entitled to both a Disadvantageous Condition Delay and a Market Interfering Delay during the Subsequent Period and is entitled to only one Market Interfering Delay during the Subsequent Period in any event. Furthermore, the duration of Registrable Securities the Subsequent Period shall be permitted voluntarily to withdraw all or any part extended by the number of its Registrable Securities from a Demand Registration at any time prior days equal to the commencement period of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of any Disadvantageous Condition Delay occurring during the proviso to Section 4.2(a)Subsequent Period.
Appears in 1 contract
Sources: Registration Rights Agreement (Credence Systems Corp)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date (as defined in date on which the Merger Agreement)Company becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Holders holders of at least fifty percent (50%) of the Registrable Securities may request the Company register under the Securities Act the Registrable Securities held by such requesting holders in a majority firm commitment underwritten public offering or any other method of distribution (including offerings involving a delayed or continuous offering pursuant to Rule 415 under the Securities Act); provided, however, that the holders of Registrable Securities shall be entitled under this Section 2 to no more than the number of shares of Common Stock sufficient to yield net proceeds equal to the aggregate number of Registrable Securities multiplied by the per share initial public offering price multiplied by 0.33 ("Minimum Demand Proceeds"); provided further however, that if the underwritten public offer (or other method of distribution) does not yield the Minimum Demand Proceeds, the holders of Registrable Securities shall be entitled to request additional registrations until the holders of Registrable Securities shall have yielded the right to require Minimum Demand Proceeds. Upon receipt of such request, the Company shall promptly deliver notice of such request to file a Registration Statement registering for sale all or part Persons holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their respective desire to be included in such registration. The right of any Person to participate in such registration shall be conditioned upon their participation in such underwritten public offering (or such other method of distribution) and the inclusion of their Registrable Securities in the underwritten public offering (or such other method of distribution) to the extent provided herein. The Company will use its best efforts to expeditiously effect the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor and shall keep such registration effective until the Registrable Securities thereunder shall have been sold, but only to the extent provided for in the following provisions of this Agreement; provided, however, that the Company shall not be required to effect registration pursuant to a request under this Section 2 more than one (i1) specifying time for the holders of the Registrable Securities as a group; provided further however, that if a registration statement does not include the number of Registrable Securities requested by the holders thereof to be included in such registration statement, it shall not be counted as a registration statement initiated pursuant to this Section 2. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within 180 days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Registrable Securities shall have been entitled to join pursuant to Section 3 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested.
(b) With respect to a request for registration pursuant to this Section 2 involving an underwritten public - 3 - offering, the Company may include in each such requested registration any authorized but unissued shares of Common Stock (or authorized treasury shares) for sale by the Company and the Shareholders may include in each such requested registration shares of Common Stock held by such Shareholders; provided, however, that any such shares of Common Stock shall not be included to the extent that the managing underwriter of the offering (if the offering is underwritten) or the holders of a majority of the shares of Registrable Securities who requested the registration (if the offering is not underwritten), determine(s) in good faith that the inclusion of such shares will interfere with the successful marketing of the shares of Registrable Securities to be included in the registration. If the managing underwriter of such registration by such Holder or Holdersoffering determines in good faith that the number of securities sought to be offered should be limited due to market conditions, (ii) specifying whether then the intended method number of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required securities to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of underwritten public offering shall be reduced to a number deemed satisfactory by such demandmanaging underwriter, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities provided that the Company has been so requested shares to register; provided, however, that be excluded shall be determined in the following order of priority: (i) securities held by any other Persons (other than the Holders shall not make holders of Registrable Securities) having a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000contractual, incidental "piggy back" right to include such securities in the registration statement, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval securities offered on behalf of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on holders who did not make the basis provided in such underwriting agreement and completes and executes all questionnairesoriginal request for registration and, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month periodif necessary, and (biv) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf Registrable Securities of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in holders who requested such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities pursuant to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis Section 2. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iii) or (iv), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) The Company shall have the Holders shall be included in a Demand Registration without right to approve the prior written consent of managing underwriter chosen by the holders of a majority in interest of the Registrable SecuritiesSecurities to be sold in such offering (which approval will not be unreasonably withheld or delayed). 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 or a transaction to which Rule 145 of the Commission is applicable) to become effective within 90 days following the effective date of any registration required pursuant to this Section 2.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECIf, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject time of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the request to register Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten OfferingSection 2(a), the Company fails is preparing a registration statement for a public offering (other than a registration effected solely to provide Full Cooperation, then such registration will be deemed not implement an employee benefit plan or a transaction to have been effected for purposes of clause (ii) which Rule 145 of the proviso to Section 4.2(a). If Commission is applicable) which in fact is filed and becomes effective within ninety (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (4590) days after the commencement request, or is engaged in any activity (including a concurrent or proposed security issuance or - 4 - acquisition) which, in the good faith determination of the distribution Company's board of directors, would be adversely affected by the Holders requested registration to the material detriment of the Registrable Securities covered by such registrationCompany, then the Company may at its option direct that such request be delayed for a period (the "Black-Out Period") not in excess of 120 days from the effective date of such offering or the date of commencement of such other activity, as the case may be. The aggregate amount of Black-Out Periods in any consecutive twelve month period shall continue to be obligated to effect a Demand Registration pursuant to not exceed 120 days. Nothing in this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder 2(d) shall preclude a holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such enjoying registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to rights which it might otherwise possess under Section 4.2(a)3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Preferred Payment Systems Inc)
Demand Registration. (a) Subject to the provisions hereoflimitations provided herein, at any time on after an initial public offering of the Common Stock, upon the written request (specifying that it is being made pursuant to this Section 2.1) of either (i) one or after more Holders of Stratford Registrable Securities representing 50% or more of the date Stratford Registrable Securities at the time outstanding, or (ii) one or more Holders of Preferred Investors Registrable Securities representing 50% or more of the Preferred Investors Registrable Securities at the time outstanding, requesting that the Company effect the registration under the Securities Act of all or part of such Holders' Registrable Securities and the other Registrable Securities of the same class of Registrable Securities (i.e., Stratford Registrable Securities or Preferred Investors Registrable Securities) (collectively, the "Requested Registrable Securities"), and specifying (x) the intended method of disposition thereof, (y) whether or not such requested registration is 180 to be an underwritten offering, and (z) the price range (net of underwriting discount and commissions) acceptable to such Holder or Holders to be received for such Requested Registrable Securities, the Company will within ten (10) business days after the Closing Date Company receives such written request give written notice of such requested registration to all other Holders of Registrable Securities and thereupon the Company will use reasonable efforts to effect an effective registration under the Securities Act of:
(as defined i) the Registrable Securities which the Company has been so requested to register by such Holders; and
(ii) all other Registrable Securities which the Company has been requested to register by the other Holders thereof by written request given to the Company within 30 days after the giving of such written notice by the Company (which request shall specify the same information called for by the original request to effect registration described above), all to the extent requisite to permit the disposition (in accordance with Section 2.1(b) hereof) of the Registrable Securities so to be registered. Notwithstanding the foregoing, DFW shall have the ability to exercise its registration rights pursuant to this Section 2.1 at any time whether or not the Company has consummated an initial public offering of its Common Stock. If the Company is required to effect a registration pursuant to this Section 2.1 and the Company furnishes to the Holders of Registrable Securities requesting such registration a certificate signed by the President of the Company stating that in the Merger Agreement)good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed on or before the date such filing would otherwise be required hereunder and it is therefore necessary to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request for such registration from the Holder or Holders of Requested Registrable Securities requesting such registration; provided that during such time the Company may not file a registration statement for securities to be issued and sold for its own account or that of anyone other than the Holder or Holders of Requested Registrable Securities.
(b) The Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Requested Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether statement shall determine the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) distribution of the Registrable Securities that the Company has been so requested to registerincluded; provided, however, that (i) the if no agreement of Holders shall not make of a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Requested Registrable Securities to be included in such Underwritten Offering and registration statement is obtained, then if Holders of thirty percent (ii30%) of the Company will be obligated and required to include in such Underwritten Offering only that number of Requested Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed statement request an underwritten public offering, an underwritten public offering shall be the method of distribution with other methods permitted to the extent the managing underwriter for such Underwriters’ Maximum Numberoffering, in its sole discretion, agrees to other methods of distribution being covered by such registration statement.
(c) Whenever the Company shall effect a registration pursuant to this Section 2.1 in connection with an underwritten offering, no securities other than Requested Registrable Securities shall be included among the securities covered by such registration unless the managing underwriter of such offering shall have advised each Holder of Requested Registrable Securities to be allocated pro rata among covered by such registration in writing that the Holders thereof on the basis inclusion of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiessecurities would not adversely affect such offering.
(d) Registrations under this Section 2.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Company and as shall be reasonably acceptable to the Holders of a majority of the Requested Registrable Securities to be registered, and (ii) as shall permit the disposition of such Registrable Securities in accordance with the method or methods of disposition selected pursuant to Section 2.1(b).
(e) Except as otherwise provided in this Section 2.1 or in Section 2.2, all expenses incurred in connection with each registration requested pursuant to Section 2.1 and each registration requested pursuant to Section 2.2 (excluding in each case underwriter's discounts and commissions applicable to Registrable Securities), including, without limitation, in each case, all registration, filing and National Association of Securities Dealer, Inc. fees; all fees and expenses of complying with securities or blue sky laws; all word processing, duplicating and printing expenses, messenger, delivery and shipping expenses; fees and disbursements of the accountants and counsel for the Company including the expenses of any special audits or "cold comfort" letters or opinions required by or incident to such registrations; and the reasonable fees and disbursements of one firm of counsel retained by Holders of such Requested Registrable Securities, premiums and other costs of policies of insurance against liabilities arising out of the public offering of the Registrable Securities, any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions, if any, shall be borne by the Company. In all cases, each Holder of Registrable Securities shall pay the underwriter's discounts and commissions applicable to the securities sold by such Holder.
(f) A registration will requested pursuant to this Section 2.1 shall not be deemed to have been effected as (i) unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared become effective by the SEC, at least 75% (unless a substantial cause of the failure of such registration statement to become effective shall be attributable to one or more Holders of Requested Registrable Securities whose Requested Registrable Securities were to have been included in such registration statement) and all Requested Registrable Securities originally requested to be included in the registration by the Holders are registered (prior to any underwriter cutbacks) have been included in such registrationregistration statement, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, (ii) if after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, or resulting in a failure to consummate the offering of Requested Registrable Securities offered thereby, (iii) if any court prevents or otherwise limits after a registration statement with respect thereto has become effective, the sale offering of Requested Registrable Securities offered thereby is not consummated due to factors beyond the control of the Holders of such Requested Registrable Securities, including without limitation in the context of a proposed firm commitment underwriting, the fact that the underwriters have advised the Holders of such Requested Registrable Securities pursuant that such Requested Registrable Securities cannot be sold at a net price equal to or above the registration, and in each case less than all net price anticipated at the time of filing of the preliminary prospectus or (iv) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (unless a substantial cause of such conditions to closing not being satisfied shall be attributable to one or more Holders of Requested Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, whose Requested Registrable Securities were included in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause statement).
(iig) of the proviso to Section 4.2(a). If (i) a requested registration requested pursuant to this Section 4.2 is deemed not 2.1 involves an underwritten offering, the underwriter or underwriters thereof shall be selected by the Company with the approval of the Holders of a majority of the Requested Registrable Securities to have been effected as be so registered.
(h) If a Demand Registration or (ii) the requested registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five 2.1 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (45with a copy to each Person requesting registration) days after that, in its opinion, the commencement number of securities requested to be included in such registration exceeds the distribution by number which can be sold in such offering within a price range acceptable to the Holders of a majority or more of the Requested Registrable Securities requested to be included in such registration, then the Registrable Securities requested to be registered pursuant to this Section 2.1 shall be reduced to the number of Registrable Securities which the Company is so advised can be sold in (or during the time of) such offering by (i) first decreasing the other securities and Registrable Securities (other than Requested Registrable Securities) requested to be registered (pro rata among such Persons requesting such registration on the basis of the percentage of other securities held by such Persons immediately prior to the filing of the registration statement with respect to such registration), then (ii) by decreasing the securities the Company intends to issue and sell for its own account pursuant to the registration statement, and finally (iii) by decreasing the Requested Registrable Securities to be registered (pro rata among such Holders of Requested Registrable Securities on the basis of the percentage of Requested Registrable Securities held by such Persons immediately prior to the filing of the registration statement with respect to such registration). In connection with any registration as to which the provisions of this clause (h) apply, no securities other than Requested Registrable Securities shall be covered by such registration, then unless all Requested Registrable Securities requested to be included in such registration have actually been included.
(i) Notwithstanding the other provisions of this Section 2.1, the Company shall continue to not be obligated required by this Section 2.1 to effect a Demand Registration pursuant to more than one effective registration (other than Short Form Registrations) at the Company's expense requested by each of the Holders of the Stratford Registrable Securities and Preferred Investors Registrable Securities. The Company shall also be required by this Section 4.2 2.1, at the Company's expense, to effect an unlimited number of Short Form Registrations; provided, that, the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences to be registered thereon (A)(i) are expected to have an aggregate disposition price (before deductions for underwriting discounts and commissions) of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all at least $1,000,000 or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) constitute at least one percent (1%) of the proviso outstanding Common Stock and (B) the Company shall not have to Section 4.2(a)effect more than two Short Form Registrations during any one fiscal year.
Appears in 1 contract
Sources: Registration Rights Agreement (O2wireless Solutions Inc)
Demand Registration. (a) Subject For a period of 270 days (plus any additional days during which a registration has been postponed pursuant to the provisions Section 2.1(f) hereof, at any time on or ) from and after the date that is 180 days after one (1) year from the Closing Date (as defined in the Merger date of this Agreement), the Holders of a majority of Registrable Securities Holder shall be entitled to have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act effect one (a “Demand Registration”1) by delivering a written request therefor demand registration on Form S-3 (to the Company (i) specifying extent available to the number of Registrable Securities to Company, or any applicable substitute, replacement or successor form that may be included in such registration adopted by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsSEC) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a then owned of record and beneficially by such Holder. A request for such demand registration (a Demand "Registration under this Section 4.2(aRequest") for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) must be made in writing by the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodHolder.
(b) The offering of Company shall use its best efforts to cause the Registrable Securities pursuant to such Demand Registration may be specified in the form of an underwritten public offering Registration Request to be registered as soon as reasonably practicable so as to permit the sale thereof and, in connection therewith, shall, within thirty (an “Underwritten Offering”). In such case, (i30) days after the Holder provides the Company may designate the managing underwriter(s) of the Underwritten Offeringwith such notice, provided that such Holders may designate prepare and file a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together registration statement with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required SEC under the terms of such underwriting agreement. The Company shall not be obligated Securities Act to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderssuch registration.
(c) IfSuch registration statement shall contain such required information pursuant to the rules and regulations promulgated under the Securities Act and such additional information as deemed necessary by the managing underwriter or, in if there is no managing underwriter, as deemed under the Securities Act to be necessary by the Company.
(d) In connection with an Underwritten Offeringthe preparation of the registration statement, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then Holder shall:
(i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of Specify the number of Registrable Securities requested intended to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held offered and sold by the Holders shall be included in a Demand Registration without Holder;
(ii) Express the prior written consent Holder's intention to offer or cause the offering of such shares for distribution;
(iii) Describe the nature or method of the holders of a majority proposed offer and sale thereof by the Holder; and
(iv) Undertake to provide all such information and materials and take all such action as may be required in interest order to permit the Company to comply with all applicable requirements of the Registrable SecuritiesSEC and to obtain any desired acceleration of the effective date of such registration statement.
(de) A registration will not be deemed Notwithstanding the foregoing, if the Company shall furnish to have been effected as the Holder a Demand Registration unless the Registration Statement relating thereto has been declared effective certificate signed by the SEC, at least 75% a duly authorized officer of the Registrable Securities requested Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company for such registration statement to be included in filed on or before the registration by the Holders are included in date such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will filing would be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationrequired, then the Company shall continue be entitled to be obligated to effect a Demand Registration pursuant to this Section 4.2 postpone the filing of the Registrable Securities included registration statement for up to ninety (90) days; provided, that no period of postponement shall be counted in tolling the 270-day period referred to in Section 2.1(a) above.
(f) If a registration has become effective but is withdrawn before completion of the offering contemplated thereby because of adverse business developments at the Company that were not known to the Holder when it requested that the Company initiate such registration. In circumstances registration proceedings, or which developments came into existence subsequent to such request, such registration shall not including count as the events described demand registration referred to in the immediately two preceding sentences first sentence of this Section 4.2(d), each 2.1.
(g) If a registration is filed on behalf of the Holder and such registration is withdrawn at the request of Registrable Securities shall be permitted voluntarily to withdraw all or the Holder for any part of its Registrable Securities from a Demand Registration reason other than adverse business developments at any time prior the Company that were not known to the commencement of marketing of such Demand RegistrationHolder, provided that such registration nonetheless shall count as the demand registration referred to in the first sentence of this Section 2.1.
(h) The Company shall not cause the registration under the Securities Act of any other shares of Common Stock to become effective (other than the registration of an employee stock plan, or registration in connection with any Rule 145 or similar transaction) during the effectiveness of a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)registration requested hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Electronic Game Card Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined in would permit the Merger Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver of the IPO Underwriting Agreement), any Person that is a Stockholder (a “Requesting Stockholder”) on the Holders date a Demand is made shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister 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 that the Company has been requested to register by the Registering Stockholder pursuant to Section 4.1(b);
(iii) all shares of Common Stock that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); providedand
(iv) all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, howeverif any, that to be so registered.
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company will not be obligated shall give written notice of such Demand to effect more than one (1) any other Persons that on the date a Demand is delivered to the Company is a Stockholder. Subject to Section 4.1(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 days after such notice by the Company has been given. Such written request shall comply with the requirements of a Demand as set forth in any six (6) month periodthis Section 4.1(b).
(bc) The offering Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(sin which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) in any prior underwritten offering conducted by the Company on its own behalf or on behalf and provided that at least 50% of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof such Stockholders to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any twelve-month period) if the Board determines in good faith and in its reasonable judgment that does not exceed the filing or effectiveness of the registration statement relating to such Underwriters’ Maximum NumberDemand Registration would cause the disclosure of material, such non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 4.4.
(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 included in 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 Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis 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) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Holder. No shares Stockholders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent securities of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities Company duly requested to be included in such registration statement, pro rata on the registration basis of the number of such other securities requested to be included or such other method determined by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement Company.
(g) Any investment bank(s) that will serve as an underwriter with respect thereto; providedto such Demand Registration or, however, that if, after it has become effective, (i) if such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by FIG LLC, for so long as a majority of the Common Stock of the Company fails to provide Full Cooperationis owned by the Initial Stockholder, then such registration will be deemed not to have been effected for purposes of clause its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) of by the proviso to Section 4.2(a). If Stockholder participating in such Demand Registration that holds (itogether with its Permitted Transferees) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement number of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences Demand Registration constituting a plurality of this Section 4.2(d), each Holder of all Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of included in such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Shareholder Agreements (Nationstar Mortgage Holdings Inc.)
Demand Registration. (a) Subject At any time from and after 180 days following the Effective Date and subject to the provisions Sections 2(c) and 2(d) hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders receipt of a majority of Registrable Securities shall have written request from a Holder (the right to require "INITIATING DEMAND HOLDER") requesting that the Company to file effect a Registration Statement registering for sale registration (a "DEMAND REGISTRATION") under the Securities Act covering all or part of their respective the Registrable Securities held by such Holder, which specifies the intended method or methods of disposition thereof, the Company shall promptly notify all Holders in writing of the receipt of such request and each such Holder, in lieu of exercising its rights under the Securities Act Section 3 hereof, may elect (a “Demand Registration”) by delivering a written request therefor notice sent to the Company within twenty (i20) specifying 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 included in such declared effective, a registration by such Holder or Holders, statement (iia "DEMAND REGISTRATION STATEMENT") specifying whether the intended method of disposition thereof is pursuant relating (subject to an Underwritten Offering (as defined below), and (iiiSection 2(b) containing hereof) to all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that which the Company has been so requested to register; 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 Class A Stock issued and outstanding on the Effective Date, calculated on an As Converted Basis (as defined in the Certificate of Incorporation) as of the date of the Demand Registration Statement, and (b) an aggregate value of $100,000,000, based on the closing trading price of the Class A Stock on the date the demand to file such Demand Registration Statement is made.
(b) If the Initiating Demand Holder so requests that the offering be underwritten with a managing 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 number of Securities to be included in such offering is greater than the total number of Securities which can be sold therein without having a material adverse effect on the distribution of such Securities or otherwise having a material adverse effect on the marketability thereof (the "MAXIMUM NUMBER OF SECURITIES"), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. 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 notifies 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 Shareholders together with all Holders who are assignees or transferees of the Shareholders, or assignees or transferees of an assignee or transferee of the Shareholders shall collectively be entitled to sixteen (16) 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) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration Statement under this Agreement in any six (6) six-month period, or (ii) any Demand Registration Statement within ninety (90) days following the date of effectiveness of any Registration Statement (other than a Shelf Registration Statement).
(be) The offering of the Registrable Securities A Demand Registration requested pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (iSection 2(a) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval hereof shall not be unreasonably withheld or delayed deemed to have been effected with respect to any Participating Demand Holder that is not able to register and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit sell at least 80% of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each on behalf of such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included Holder in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch registration.
(df) A registration will not be deemed to have been effected as a Participating Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with Holder may withdraw its obligations under this Agreement request with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effective date of marketing the Demand Registration Statement relating thereto by 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 Class A Stock 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 20 days of the date of the written notice of withdrawal, for all Expenses (as defined in Section 12 below) incurred by the Company, in connection with such withdrawn Demand Registration that would not otherwise have been incurred by the Company. Any such withdrawn Demand Registration shall be counted with respect to such Holder for purposes of Section 2(c) hereof as a completed Demand Registration, provided unless such withdrawal was the result of a change in market conditions that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) would materially adversely effect the amount and/or price of the proviso Registrable Securities to Section 4.2(a)be included in the Demand Registration.
Appears in 1 contract
Demand Registration. (a) Subject to From and after the provisions hereof, at any time on or after earlier of the date that is 180 days one calendar year after the Closing Date date hereof, after receipt of a written request from the Holders owning 50% of the Registrable Securities of each class requesting that the Company effect the registration of all or a portion of the Registrable Securities and specifying the intended method or methods of disposition thereof (as defined in the Merger Agreementa "Holder Notice"), the Holders of a majority of Registrable Securities shall have Company shall, as expeditiously as is possible, use its reasonable commercial efforts to effect the right to require the Company to file a Registration Statement registering registration for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of all shares of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that which the Company has been so requested to registerregister by such Holders, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of such Registrable Securities so registered; providedPROVIDED, howeverHOWEVER, that (i) the Holders Company shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one (1) Demand Registration in registration of any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in this Section 2(a) except as otherwise expressly provided herein. If the form managing underwriter of an underwritten a proposed public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in writing that, in its or their reasonable opinion opinion, the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company or such other registering security holders would materially and adversely affect the distribution of such securities by the Company or such registering security holders, then the Company may require all selling security holders (other than the Company) to reduce the amount of securities each intended to distribute through such offering on a pro rata basis; PROVIDED, HOWEVER, that if the Company requires such reduction, and if Holders requesting such registration pursuant to this Section 2(a) are unable to include in such registration Registable Securities that they requested be included in such registrationregistration in the related Holder Notice that constitute Substantial Market Value Securities, due to such pro rata reduction (the Registrable Securities that such Holder so requested to be included in such registration that were not included in such registration due to such pro rata reduction being referred to herein as the "Reduction Shares", and the registration in which such reduction occurred being referred to herein as a "Failed Registration"), then subject to the other provisions hereof applicable to a demand registration the Holders of the Reduction Shares shall have the right, exercisable commencing on the day that is two calendar months after the termination of the Registration Period relating to the Failed Registration by written notice sent to the Company has complied in all material respects with its obligations under by Holders of 50% of the Reduction Shares (a "Repurchase/Register Notice"), to require the Company to elect (at the Company's option) to either register the Reduction Shares otherwise pursuant to this Agreement with respect thereto; providedSection 2(a) or, howeverif the foregoing offer to sell or resulting sale is then lawful, that if, after it has become effective, to repurchase the Reduction Shares at the higher of (i) such Registration Statement or the related offer, sale or distribution of price per share for which Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are were actually sold by in the selling Holder or Holders pursuant to the Registration StatementFailed Registration, or (ii) if, in the case of an Underwritten Offering, Market Price on the date the Repurchase/Register Notice is sent to the Company fails to provide Full Cooperationin compliance with this Agreement; PROVIDED, then such registration will HOWEVER, that the Holders shall not be deemed not hereby or thereby to have been effected for purposes of clause (ii) of made any offer to sell to the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 Company that does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then comply with applicable law and the Company shall continue not be entitled or deemed to be obligated entitled to effect a Demand Registration pursuant repurchase such Reduction Shares or to this Section 4.2 of be offered the Registrable Securities included in right to or solicit the right to repurchase such registration. In circumstances not including Reduction Shares or deemed to have bid for such Reduction Shares hereby or thereby if such repurchase, offer, or bid would violate any applicable securities law; and PROVIDED FURTHER, HOWEVER, that any such repurchase shall occur at such time within three calendar months after the events described in date that the immediately two preceding sentences Company receives the related Repurchase/Register Notice subject to the other provisions of this Section 4.2(d2(a), and otherwise at such time and place as the Company may determine, and each Holder of Registrable Securities the parties hereto agrees to execute and deliver such agreements, instruments, and other documents, and to take such other actions, as may be necessary or desirable to effect any such repurchase in compliance with all applicable laws. The Company shall respond to such Repurchase/Register Notice by written notice to the Purchaser within 30 business days after its receipt of the Repurchase/Register Notice (an "Election Notice"), which Election Notice shall set forth whether the Company desires to so register such Reduction Shares or to repurchase such Reduction Shares; PROVIDED, HOWEVER, that the Company shall be permitted voluntarily deemed to withdraw all or any part have elected to register such Reduction Shares if it does not give such notice within such 30 business day period. If the Company so elects to repurchase such Reduction Shares, and if the Market Price requires an agreement of its Registrable Securities from a Demand Registration at any time prior the Company and such holders as to the commencement of marketing fair market value of such Demand RegistrationReduction Shares, provided that the consummation of such registration nonetheless repurchase shall count not be required to be consummated until as a Demand Registration for purposes soon as practicable after such fair market value has been determined as set forth in the definition of clause (ii) of the proviso to Section 4.2(a)Market Price set forth herein.
Appears in 1 contract
Sources: Registration Rights Agreement (Crown Northcorp Inc)
Demand Registration. (a) Subject At any time following the expiration of the Relevant Restricted Period, if the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 3.1 hereof, subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined restrictions set forth in the Merger Agreement)Section 2.2, the Holders of a majority of Registrable Securities Investor shall have the right right, by delivering a written notice to the Company (a “Demand Notice”), to require the Company to file a Registration Statement registering for sale all or part register under and in accordance with the provisions of their respective Registrable Securities under the Securities Act the number of Registrable Securities Beneficially Owned by the Investor and requested by such Demand Notice to be so registered (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders Company shall not make a request for be required to effect a Demand Registration under pursuant to this Section 4.2(a3.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000after the Company has effected two (2) Demand Registrations pursuant to this Section 3.2(a); and provided, (ii) further, that the Holders will Investor shall not be entitled to require deliver to the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) 12-month period.
(b) The offering period and, in any event, a Demand Notice may only be made if the sale of the Registrable Securities pursuant requested to such be registered by the Investor includes at least 25% of the shares of Company Common Stock into which the originally issued shares of the Preferred Stock (which, for the avoidance of doubt, shall include all of the shares of Preferred Stock that were issued to the Investor and LNK under the Purchase Agreements) may be converted or is reasonably expected to result in aggregate gross cash proceeds in excess of $50,000,000 (without regard to any underwriting discount or commission). For all purposes under this Section 3.2(a), any Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished delivered to the Company by LNK under the LNK Stockholders Agreement shall be considered to be a Demand Registration delivered under this Section 3.2(a) and a Joint Demand Registration shall be deemed to be a single Demand Registration under this Section 3.2(a). A Demand Notice shall also specify the expected method or on behalf methods of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the applicable Registrable Securities disposed Securities. Following receipt of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on a Demand Notice, the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall use commercially reasonable efforts to file, as promptly as reasonably practicable, but not be obligated to effect or participate (a) more later than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted 30 days after receipt by the Company on its own behalf or on behalf of such Demand Notice, a Registration Statement relating to the offer and sale of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each the Investor in accordance with the methods of distribution elected by the Investor (a “Demand Registration Statement”) and shall use commercially reasonable efforts to cause such Holder. No shares Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) If any of Common Stock held by any Person other than the Registrable Securities held registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Investor in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the Holders total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Investor; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(c) In the event of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold.
(d) The Investor (or in the case of a Joint Demand Registration, the Joint Representative) shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration without or a Joint Demand Registration, as the case may be, be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement or Joint Demand Registration; provided, however, that the Company shall not be required to pay for expenses of any registration proceeding begun pursuant to Section 3.2(a) hereof, which has been subsequently withdrawn pursuant to this Section 3.2(d) at the request of the Investor (or in the case of a Joint Demand Registration, the Joint Representative), and shall be reimbursed by the Investor (or in the event of a Joint Demand Registration by the Investor and LNK on a pro rata basis) for reasonable and documented out-of-pocket expenses (including legal fees and printing expenses) so incurred, unless the withdrawal is based upon material adverse information concerning the Company that the Company had not publicly disclosed at least two (2) Business Days prior to the Company’s receipt of such Demand Notice.
(e) Subject to Section 3.4, with the prior written consent of the holders of a majority in interest of the Registrable Securities.
Investor (d) A registration will which consent shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECunreasonably withheld, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement conditioned or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringdelayed), the Company fails shall be entitled to provide Full Cooperation, then such registration will coordinate any offerings under this Section 3.2 with any offerings to be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand similar agreements with the holders of Other Securities, including, if practicable, by filing one Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw Statement for all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Other Securities.
Appears in 1 contract
Sources: Stockholder Agreement (Phillips Van Heusen Corp /De/)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 publication by the Parent of financial results covering at least 30 days after of post Merger combined operations, upon written notice from the Closing Date Representatives (as defined hereinafter defined) in the Merger Agreement), manner set forth in Section 11(h) hereof requesting that the Holders of a majority of Registrable Securities shall have Parent effect the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor of any or all of the Registrable Securities, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Parent shall use its reasonable best efforts to effect, in the Company manner set forth in Section 5, the registration under the Securities Act of all of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request, provided that:
(i) specifying if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), Parent is advised in writing (with a copy to the Holder requesting registration) by the lead underwriter of the proposed offering described below that, in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any immediately planned offering of securities by Parent as to which Parent was In Registration prior to receipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) 120 days after receipt by the Holder requesting registration of the lead underwriter's written opinion referred to above in this subsection (i));
(ii) if, while a registration request is pending pursuant to this Section 2(a), Parent has determined in good faith that the filing of a registration statement would require the disclosure of material non-public information that Parent has a bona fide business purpose for preserving as confidential, Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such material information is otherwise disclosed to the public or ceases to be material or Parent is able to so comply with applicable SEC requirements, as the case may be, and (2) 90 days after Parent makes such good-faith determination;
(iii) Parent shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) if such registration request is for a number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price then market value of less than $5,000,000, 150 million or (iiB) more than 36 months have elapsed since the Holders will not be entitled to require Effective Time;
(iv) at least four months have elapsed since the Company to effect last request made by the Representatives on behalf of any Holders; and
(v) no more than three (3) Demand Registrations in the aggregate demands under this Agreement, and (iii) the Company will not Section 2 shall be obligated required to effect more than one (1) Demand Registration in any six (6) month periodbe honored.
(b) The offering Notwithstanding any other provision of this Agreement to the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, contrary:
(i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or requested on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such a Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnairesthis Section 2, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration (and, therefore, not requested for purposes of subsection 2(a)), (A) unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the registration statement filed with respect to such Holder's Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, become effective or (B) if after it has become effective, (i) effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, all of the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement or (C) 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 an act or omission by such Holder) or waived by the underwriters; and
(ii) a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2(a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, unless such request is withdrawn by a Holder prior to the filing of a registration statement with the SEC; and
(c) In the event that any court prevents registration pursuant to this Section 2 shall involve, in whole or otherwise limits in part, an underwritten offering, a Holder shall have the right to designate an underwriter reasonably satisfactory to Parent as a co-manager of such underwritten offering and Parent shall have the right to designate the lead underwriter reasonably satisfactory to the Holder of such underwritten offering.
(d) Parent shall have the right to cause the registration of additional securities for sale for the account of any person (including Parent) in any registration of Registrable Securities requested by a Holder pursuant to Section 2(a); provided that Parent shall not have the right to cause the registration of such additional securities if such person is advised in writing (with a copy to the Parent) by the lead underwriter that, in such firm's good faith opinion, registration of such additional securities would materially and adversely affect the offering and sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered contemplated by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the earlier of (i) one (1) year after the date that is of this Agreement or (ii) 180 days after the Closing Date (as defined in effective date of the Merger Agreement)registration statement for the IPO, the Holders Company receives a request from Purchasers (the “Initiating Purchasers”) holding at least 67% of a majority of the Registrable Securities shall have the right to require Securities, that the Company to file a Registration Statement registering for sale Form S-1 registration statement having an anticipated aggregate offering price, net of Selling Expenses, of at least $2,500,000, then the Company shall: (x) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Purchasers other than the Initiating Purchasers and (y) or part of their respective Registrable Securities soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Purchasers, file a Form S-1 registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of 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 Purchasers, as specified by notice given by each such Holder or Holders, Purchaser to the Company within twenty (ii20) specifying whether days of the intended method of disposition thereof date the Demand Notice is pursuant to an Underwritten Offering (as defined below)given, and (iiiin each case subject to the limitations of Sections 4(c) containing all information about such Holder required and 4(e). Notwithstanding anything to the contrary contained herein, no request may be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration made under this Section 4.2(a4 within one hundred eighty (180) for days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be shall have been entitled to require the Company join pursuant to effect more than three (3) Demand Registrations Sections 5 or 6 and in the aggregate under this Agreement, and (iii) the Company will not be obligated which there shall have been effectively registered all Registrable Securities as to effect more than one (1) Demand Registration in any six (6) month periodwhich registration shall have been requested.
(b) The offering If the method of disposition specified in the request from the Purchasers pursuant to Section 4(a) shall be an underwritten public offering, the holders of a majority of the Registrable Securities pursuant to be sold in such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) underwriter of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringoffering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) delayed. Notwithstanding the foregoing sentence, if the Company elects to include shares of Common Stock in such offering pursuant to Section 4(d) hereof such that the number of shares requested for inclusion by the Company (prior to any cut back by an underwriter) is equal to or greater than the number of Registrable Securities pursuant to this Section 4, then the Company may, in its sole discretion, designate the managing underwriter of such offering. The Company shall be obligated to register Registrable Securities pursuant to this Section 4 on two (together 2) occasions only, provided, however, that such obligation shall be deemed satisfied only when a registration statement covering all Registrable Securities specified in notices received as aforesaid, for sale in accordance with the Holders proposing to distribute their securities through method of disposition specified by the requesting holders, shall have become effective and, if such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for method of disposition is a firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through underwritten public offering, all such Underwritten Offering, which underwriting agreement shares shall have indemnification provisions in substantially been sold pursuant thereto.
(c) Notwithstanding the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part offoregoing, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then demand registration: (i) the Company shall so advise all Holders of Registrable Securities to be included in unless such Underwritten Offering and registration would have a net aggregate offering price exceeding $2,500,000; or (ii) if such demand is made within 12 months of a previous demand registration. In addition, if the President or Chief Executive Officer of the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis executes a certificate giving notice of the number of Registrable Securities requested Company’s intention to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by file a registration statement or stating that in the Holders shall be included in a Demand Registration without the prior written consent good faith judgment of the holders Board of a majority in interest Directors of the Registrable SecuritiesCompany the offering would be (i) detrimental to the Company or its shareholders, (ii) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (iii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iv) render the Company unable to comply with requirements under the Securities Act or Exchange Act, the Company may delay such request one or more times (but only once in any 12 month period) for a period not to exceed 180 days after receipt of the request pursuant to Section 4(a) above.
(d) A The Company shall be entitled to include in any registration will not be deemed statement referred to have been effected as a Demand Registration unless in this Section 4, for sale in accordance with the Registration Statement relating thereto has been declared effective method of disposition specified by the SECrequesting holders, at least 75% 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 (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Registrable Securities requested to be included in sold. In such event, the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution number of Registrable Securities thereunder is or becomes the subject shares of any stop order, injunction or other order or requirement Common Stock to be registered on behalf of the SEC or any other governmental or administrative agencyCompany, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationany, and shall be computed as set forth in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or Section 4(e) below.
(iie) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) Whenever a registration requested pursuant to this Section 4.2 4 is deemed not for an underwritten public offering, only shares of Common Stock which are to have been effected as be included in the underwriting may be included in the registration. Notwithstanding the provisions of Sections 4(b) and 4(c), if the underwriter determines that marketing factors require a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement limitation of the distribution total number of shares of Common Stock to be underwritten or a limitation of the total number of shares of Common Stock to be sold by the Holders of the Registrable Securities covered by such registrationCompany, then the Company shall continue number of shares to be obligated included in the registration and the underwriting shall first be allocated among all holders who indicated to effect a Demand Registration pursuant the Company their decision to this Section 4.2 distribute any of their Registrable Securities through such underwriting, in proportion, as nearly as practicable, to the respective number of Registrable Securities requested for inclusion in the registration by such holders , then the remainder, if any, to the Company. No stock excluded from the underwriting by reason of the Registrable Securities underwriter’s marketing limitation shall be included in such registration. In circumstances If the Company determines not including to participate in any such underwriting, it may elect to withdraw therefrom by written notice, within five (5) days of notice to the events described in Company of such underwriter’s marketing limitation, to the immediately two preceding sentences of this Section 4.2(d), each Holder holders of Registrable Securities and the underwriter. The securities so withdrawn from such underwriting shall also be permitted voluntarily to withdraw all or any part of its Registrable Securities withdrawn from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)registration.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under receives from the Securities Act (a “Demand Registration”) by delivering Initiating Holders a written request therefor to that the Company (i) specifying the number of effect any registration, qualification or compliance with respect to issued Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandSecurities, the Company shall (xi) promptly notify within ten (10) days of the receipt by the Company of such request, give written notice of the proposed registration, qualification or compliance to all other Holders from whom the request for registration has not been received and (yii) as soon as practicable, use its commercially reasonable best efforts to effect such registration registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) ). The subject registration, qualification or compliance shall be made so as to permit or facilitate the sale and distribution of all or such portion of such Registrable Securities held by the Initiating Holders, in the form of common stock, as are specified in such request, together with all or such portion of the Registrable Securities that of any Holder or Holders joining in such request as are specified in a written request, received by the Company within twenty (20) days after receipt of such written notice from the Company; provided, that, the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 2.5(a):
(i) 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;
(ii) In any event after two such requests have been made; provided, that, a registration requested pursuant to this Section 2.5 shall not be deemed to have been effected for the purposes of this Section 2.5(a)(ii) unless (i) it has been so requested declared effective by the SEC, (ii) it has remained effective during such period as required by the SEC to effect the offering of all common stock registered pursuant to such registration, and (iii) the offering of common stock pursuant to such registration has been completed;
(iii) If the Company furnishes to such Holders a certificate signed by a duly authorized officer of the Company stating that in the good faith judgment of the Board of Directors it would be materially detrimental to the Company or its stockholders for a registration statement to be filed in the near future, then the Company's obligation to use its best efforts to register, qualify or comply under this Section 2.5 shall be deferred for a period not to exceed ninety (90) days from the date of receipt of written request from the Initiating Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of utilize this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) right more than two (2) Underwritten Offerings once in any twelve (12) month period; provided further, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in not register any other Shares during such Underwritten Offering and twelve (ii12) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.month period; or
(div) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement completion of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Qualified IPO.
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Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date hereof, if the Company shall receive a written request by a Holder (a "Requesting Holder") that is 180 the Company effect a Demand Registration of all or a portion of such Requesting Holder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested Demand Registration at least 20 days after prior to the Closing Date anticipated filing date of the registration statement relating to such Demand Registration to each other Holder (the "Other Holders") and thereupon will use its best efforts to effect, as defined in the Merger Agreement)expeditiously as possible, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company of:
(i) specifying the number Registrable Securities which the Company has been so requested to register by the Requesting Holder; and
(ii) all other Registrable Securities which the Other Holders have requested the Company to register by written request received by the Company within 10 days after the receipt by the Other Holders of the written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 2.01(d) hereof, the Company shall not be obligated to effect more than two Demand Registrations for the Holders; provided further that the Company shall not be obligated to effect a Demand Registration for any Holder unless the aggregate proceeds expected to be received from the sale of the Registrable Securities to be included in such registration by such Holder Demand Registration, in the reasonable opinion of the Board, equals or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), exceeds $50,000,000; and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, provided further that the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (includingnot, without limitationin any event, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one (1) Demand Registration for all Holders pursuant to this Section 2.01(a) within any twelve month period. In addition, the Company shall have the right to preempt any Demand Registration (including, for the avoidance of doubt, any Shelf Takedown) with a primary registration by delivering written notice (within 10 days after the Company has received from the Selling Stockholder a request for such Demand Registration) of such intention to the Selling Stockholder indicating that the Company has identified a specific business need and use for the proceeds of the sale of such securities and the Company shall use all commercially reasonable efforts to effect a primary registration within 120 days of such notice. In the ensuing primary registration, the Holders will have such incidental registration rights as are set forth in Section 2.02 hereof. Upon the Company's preemption of a requested Demand Registration, such requested registration will not count as a Demand Registration. The Company shall not be entitled to exercise this right of preemption more than one time in any six (6) 12-month period. Notwithstanding the foregoing, in connection with any Demand Registration, the Holders shall not be permitted to request that a Shelf Registration Statement be filed.
(b) The offering Selling Stockholder requesting a registration under this Section (including, for the avoidance of doubt, any Shelf Takedown) may, at any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such Demand registration (or, at any time prior to the date of any Shelf Takedown if a Shelf Registration may be in the form of an underwritten public offering (an “Underwritten Offering”Statement has been filed and declared effective). In , revoke such caserequest, (i) without liability to such Selling Stockholder, by providing a written notice to the Company may designate the managing underwriter(s) of the Underwritten Offeringrevoking such request, provided that in which case such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringrequest, subject to the approval of the Companyso revoked, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in considered a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) If, Any Holder participating in any Demand Registration will pay all Holder Registration Expenses in connection with an Underwritten Offeringsuch Demand Registration that are allocable to the shares sold by that Holder, and except in the case where a Selling Stockholder's revocation of a Demand Registration request arises out of the fault of the Company, the managing underwriter(s) advise the Participating Holders will pay all Company that Registration Expenses in its or connection with such Demand Registration, proportionally in accordance with their reasonable opinion the number of securities proposed to be Registrable Securities included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistration.
(d) A registration will Demand Registration requested pursuant to this Section shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, at least 75% of Securities Act and (B) has remained effective until such time as the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects registration have actually been sold thereunder; provided that if after any registration statement requested pursuant to this Section becomes effective such registration statement is interfered with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt, or such a Demand Registration shall not be deemed to have been effected.
(e) If the managing underwriter of an offering advises the Company that, in its view, the number of Registrable Securities requested to be included in a registration effected under this Section 2.01 (including any securities which the Company proposes to be included which are not Registrable Securities) exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be included in such registration by the Requesting Holder and the Other Holders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Requesting Holder and such Other Holders on the basis of the relative number of shares of Registrable Securities requested to be included in such registration); and
(B) second, any court prevents or otherwise limits securities proposed to be registered by the Company.
(f) If the Company is eligible to file with the SEC a Shelf Registration Statement, the Company may, in its sole discretion, file with the SEC a Shelf Registration Statement with respect to Registrable Securities then outstanding. After a Shelf Registration Statement has been filed, for as long as the Company is eligible to use such Shelf Registration Statement, the Holders may only exercise any Demand Registrations remaining under Section 2.01(a) to effect the sale of the Registrable Securities pursuant to a Shelf Takedown (subject to the registration, other limitations applicable to Demand Registrations by Holders and in each case less than all other Selling Stockholders contained herein).
(g) In the event another stockholder of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant Company shall have exercised any right to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, require the Company fails to provide Full Cooperationregister its shares of Class A Common Stock for sale under the Securities Act, then such registration will no Holder shall be deemed not permitted to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as request a Demand Registration or (ii) until the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company other stockholder shall continue to be obligated to effect a Demand Registration pursuant to this have been completed and any hold-back period contemplated by Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities 2.03 shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)have expired.
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